IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-00807-REB-CBS
JULIANNA BARBER, by and through her next friend, MARCIA BARBER, MADELINE BARBER, by and through her next friend, MARCIA BARBER, MARCIA BARBER, COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation, and AMERICAN COUNCIL OF THE BLIND OF COLORADO, INC.,
a Colorado non-profit corporation,
Plaintiffs,
v.
STATE OF COLORADO, DEPARTMENT OF REVENUE, STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR
VEHICLES, M. MICHAEL COOKE, in his official capacity as Executive Director of the
Colorado Department of Revenue, and JOAN VECCHI, in her official capacity as Senior Director of the
Colorado Division of Motor Vehicles,
Defendants.
SECOND AMENDED AND SUPPLEMENTAL COMPLAINT
Plaintiffs Julianna Barber, Madeline Barber, Marcia Barber, the Colorado Cross-
Disability Coalition, and the American Council of the Blind of Colorado, by and through
their attorneys, Fox & Robertson, P.C. and Kevin W. Williams, hereby bring this
Complaint against the Department of Revenue and the Division of Motor Vehicles of the
State of Colorado, M. Michael Cooke, in his official capacity as Executive Director of the
Colorado Department of Revenue, and Joan Vecchi, in her official capacity as Senior
Director of the Colorado Division of Motor Vehicles.

Introduction 1. Colorado law permits individuals to begin driving at the age of 15 when accompanied by a parent or guardian who is also a licensed driver. Marcia Barber is visually impaired and, as a result, does not have a driver’s license. She requested the reasonable modification that her then 15-year-old daughter, Julianna, be permitted to drive accompanied by another close relative who is a licensed driver. Defendants refused to make this reasonable modification, in violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
Jurisdiction and Venue 2. This Court has jurisdiction over the federal claim in this action pursuant to 28 U.S.C. §§ 1331 and 1343. 3. Venue is proper within this District pursuant to 28 U.S.C. § 1391.
Parties 4. Julianna Barber is a resident of Colorado Springs, Colorado. She is 16 years old and participates in this lawsuit by and through her next friend, her mother Marcia Barber. 5. Madeline Barber is a resident of Colorado Springs, Colorado. She is 14 years old and participates in this lawsuit by and through her next friend, her mother Marcia Barber. Madeline Barber will turn 15 on January 14, 2007.
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6. Marcia Barber is a resident of Colorado Springs, Colorado. She has retinitis pigmentosa and as a result is substantially limited in major life activities, including but not limited to the major life activity of seeing.
7. Plaintiff Colorado Cross-Disability Coalition (“CCDC”) is a Colorado nonprofit corporation whose members are persons with disabilities and their nondisabled allies.
8. Plaintiff American Council of the Blind of Colorado (“ACBC”) is a Colorado non-profit corporation whose members are blind and sighted Coloradans.
9. Defendant Department of Revenue (“Department”) is a department of the government of the State of Colorado. Through its Division of Motor Vehicles, Department is responsible for administering the licensing of drivers in Colorado.
10. Defendant Division of Motor Vehicles (“Division”) is a division of the Department of Revenue of the State of Colorado. It is responsible for administering the licensing of drivers in Colorado.
11. Defendant M. Michael Cooke is the Executive Director of the Colorado Department of Revenue.
12. Defendant Joan Vecchi is the Senior Director of the Colorado Division of Motor Vehicles.
13. Defendants Department and/or Division receive federal financial assistance as that term is defined in 29 U.S.C. § 794.
14. Defendants Department and/or Division received a federal grant to fund the improvement of motor vehicle accident processing.
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15. Defendants Department and/or Division also received a federal grant to discourage drinking and driving.
16. Defendants Department and/or Division also received a federal grant for a pilot project to implement automated testing for commercial driver licenses.
17. From approximately July 1, 2003 to June 30, 2004, Defendants Department and/or Division received at least $2,718,793 in federal funds.
18. From approximately July 1, 2002 to June 30, 2003, Defendants Department and/or Division received at least $3,620,104 in federal funds.
Facts 19. In 1999, the General Assembly declared that, “[g]raduated drivers licensing systems are designed to teach beginning drivers how to drive making certain that they accumulate sufficient behind-the-wheel experience in low-risk settings before they receive an unrestricted driver’s license,” and that “A graduated drivers licensing system is needed in Colorado to progressively develop and improve the skills of its teenage drivers in the safest possible environment to reduce the incidence of collisions and fatalities among teenage drivers.” Colo. Laws 1999 ch. 334, sec. 1(c) & (d) (emphasis added). 20. The Colorado General Assembly declared further that “[t]eenage drivers, in order to become safe and responsible drivers, need behind-the-wheel driving experience before they can begin to drive without restrictions,” and that “[p]roviding additional behind-the-wheel training with a parent, guardian, or other responsible adult
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before obtaining a minor driver’s license is the beginning of the young driver’s accumulation of experience.” C.R.S. § 42-2-105.5.
21. Colorado residents are eligible to apply for a “minor’s driver’s license” at the age of 16. Id. § 4-2-104(1)(c).
22. To encourage teen-age drivers to get additional “behind-the-wheel” experience, the legislature provided that individuals 15 to 16 years old may obtain a “minor’s instruction permit.” Id. § 42-2-106(b).
23. Plaintiff Julianna Barber was born on September 8, 1989. She turned 15 on September 8, 2004.
24. At that time, Colorado law provided that, after completion of a driver education course, the holder of the minor’s instruction permit could drive under the supervision of a parent, stepparent, or guardian if such individual held a valid driver’s license. C.R.S. § 42-2-106(b) (2004).
25. On or about October 13, 2004, Julianna Barber obtained a minor’s instruction permit. On October 23, 2004, she completed a driver education course.
26. Following completion of her driver education course and until she turned 16 on September 8, 2005, Julianna Barber was only permitted to drive with a licensed parent, stepparent or guardian.
27. Marcia Barber has full custody of her daughters, Julianna and Madeline Barber.
28. Julianna and Madeline Barber’s father does not have custody of either girl, does not have a driver’s license and resides in the state of California.
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29. Because of her visual disability, Marcia Barber does not have a driver’s license.
30. As such, Julianna Barber did not have a parent, stepparent or guardian with a license and thus was not able to practice driving using her “minor’s instruction permit.”
31. In or about September or October of 2004, Marcia Barber inquired of her local Division of Motor Vehicles office concerning whether she could obtain the reasonable modification of permitting Julianna to drive with her grandfather, who is a licensed driver, before she turned 16. Ms. Barber thus placed Defendants on notice that she required such a modification.
32. Marcia Barber was ultimately referred to Steve Tool, then Director of the Division of Motor Vehicles of the Department of Revenue. By letter dated November 22, 2004, Mr. Tool ultimately conveyed the view of the Attorney General’s office that the grandfather would not qualify unless legally appointed as a guardian. Defendants thus intentionally, and with deliberate indifference to Ms. Barber’s federally protected rights, rejected Ms. Barber’s request for a reasonable modification.
33. By letter dated December 2, 2004 to Mr. Tool, Marcia Barber requested that he ask the Attorney General’s office to reconsider this response, and clarified that she was asking for a modification of the requirement. Ms. Barber explicitly referenced the ADA. Ms. Barber thus placed Defendants on notice a second time that she required a reasonable modification, and made clear that her federally-protected rights were at stake.
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34. After several more, unfruitful conversations with Mr. Tool, Ms. Barber called John Suthers, the Attorney General of Colorado. She described her situation and requested a modification, again specifically referencing the ADA. Ms. Barber again placed Defendants on notice that she required a reasonable modification.
35. Mr. Suthers stated that he did not see the question as an ADA issue, and suggested that Ms. Barber assign guardianship of her daughter to someone else who could drive with her. Defendants again intentionally, and with deliberate indifference to Ms. Barber’s federally protected rights, rejected Ms. Barber’s request for a reasonable modification.
36. This was very painful for Ms. Barber, who has worked hard to ensure that her daughters can participate fully in all activities despite the fact that their mother is blind.
37. Marcia Barber wrote to Mr. Suthers on January 21, 2005 and January 25, 2005, explaining the requirement in the ADA of reasonable modifications, requesting that he grant her request, and explaining how painful his suggestion had been. Through these letters, Ms. Barber again placed Defendants on notice that she required a reasonable modification, and again made clear that her federally-protected rights were at stake.
38. By letter dated February 3, 2005, Chris Méndez, an attorney with the Legal Center for People with Disabilities and Older People, wrote to the Attorney General’s office on Ms. Barber’s behalf, explaining in detail why the Barbers were entitled to the relief they had requested. Mr. Méndez provided a detailed legal analysis
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supporting Ms. Barber’s request for reasonable modifications, under both the ADA and the Rehabilitation Act. Ms. Barber, through her attorney Mr. Méndez, again placed Defendants on notice that she required a reasonable modification, and again made clear that her federally-protected rights were at stake.
39. By letter dated February 23, 2005, the Office of the Attorney General replied, refusing such relief. This letter makes clear that Defendants -- acting through their attorneys -- specifically considered and rejected Ms. Barber’s request under both federal statutes. Defendants again intentionally, and with deliberate indifference to Ms. Barber’s federally protected rights, rejected Ms. Barber’s request for a reasonable modification.
40. Effective May 27, 2005, section 42-2-106(b) was amended to provide that that, after completion of a driver education course, the holder of the minor’s instruction permit could drive under the supervision of a parent, stepparent, grandparent with power of attorney, or guardian if such individual held a valid driver’s license. C.R.S. § 42-2-106(b) (2005).
41. This statute would still have required Marcia Barber to convey legal rights to her father (Julianna’s grandfather) in order to permit him to supervise Julianna’s driving. Ms. Barber was unwilling to convey such legal rights.
42. Without an adult to supervise her driving, Julianna Barber lost the advantages -- declared important by the Colorado General Assembly -- of a year of supervised “behind-the-wheel” experience before she received her license.
43. Julianna Barber turned 16 on September 8, 2005.
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44. Individuals who are 16 years of age are eligible to apply for a minor’s driver’s license provided they have logged 50 hours of driving experience. C.R.S. §§ 42-2-104(1)(c) & 106(1)(a). Most teenagers are able to log those 50 hours -- and more -- with their minor instruction permit during the year between their 15th and 16th birthdays. Because of Defendants’ discrimination, Julianna had been able to log only a few hours, for example, with her paid driver instruction program.
45. As of her 16th birthday, Julianna was permitted to drive with her minor’s instruction permit accompanied by any licensed driver over the age of 21. C.R.S. § 422-106(1)(a).
46. Julianna logged the remainder of the required 50 hours in the two months after her 16th birthday, compressing into that period the experience most young drivers gain over an entire year. Among other things, this did not give her driving experience in a full range of road conditions.
47. Julianna obtained her driver’s license on November 14, 2005. 48. When she turns 15 less than one year from now, Madeline Barber will not have a parent, stepparent or guardian with a license and thus will not be able to drive using her “minor’s instruction permit” until she turns 16. Marcia Barber will not convey legal rights to her father to permit him to supervise Madeline’s driving. 49. Unless Madeline Barber is permitted to drive with another licensed adult -without affecting her or her mother’s legal rights -- she, too, will lose the advantages of a year of supervised “behind-the-wheel” experience before she receives her license.
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50. Thus, unless Defendants change their policy to permit reasonable modifications, Marcia and Madeline Barber will face discrimination in one year when Madeline turns 15.
51. Marcia Barber has been and will continue to be injured by Defendants’ conduct, including but not limited to:
a. being excluded from the minor driving instruction program and the supervision of her daughters’ driving instruction between the ages of 15 and 16;
b. encountering greater difficulty obtaining a benefit -- participation in the minor driving instruction program -- than for individuals without disabilities due to a barrier imposed by the government;
c. being prevented by a discriminatory policy -- the refusal to make reasonable modifications -- from participating in the program; and/or
d. being stigmatized as a mother who is unable to supervise her daughters’ driving instruction, as a direct result of having personally been discriminated against by Defendants.
52. Juliana Barber was injured and Madeline Barber will be injured by Defendants’ discrimination against their mother, including but not limited to:
a. being denied the opportunity to practice driving in a variety of weather conditions and over the course of a full year between their 15th and 16th birthdays;
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b. facing delays in obtaining their drivers’ licenses after their 16th birthday; and/or
c. otherwise being denied the benefits of the minor driving instruction program, for example, those referred to in Paragraphs 19 and 20 above.
53. Plaintiffs’ injuries were and/or will be caused by Defendants’ conduct, in that Defendant denied Marcia Barber’s request for a reasonable modification that, if granted, would have permitted all Plaintiffs to avoid injury.
54. The relief requested will redress Plaintiffs’ injuries: a. Marcia and Julianna Barber request compensatory damages to redress the injuries they suffered when Defendants denied Marcia Barber’s request for reasonable modifications when Julianna was eligible for a minor’s instruction permit; and b. Marcia and Madeline Barber request injunctive relief to prevent the injuries they will suffer less than a year from now, when Marcia -- in the absence of such relief -- will be unable to participate in and supervise Madeline’s driving practice.
55. Marcia, Julianna and Madeline Barber are members of CCDC. 56. CCDC’s purpose is to work for systemic change that promotes independence, self-reliance, and full inclusion for people with disabilities in the entire community. As part of that purpose, CCDC seeks to ensure that persons with
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disabilities and those related to or associated with such persons do not encounter discrimination in government services such as licensing.
57. One of CCDC’s programs is the Center for the Rights of Parents with Disabilities (“CRPD”). The mission of the CRPD is to combat discrimination that impacts parenting for parents with disabilities, through direct services, education, research and training.
58. CCDC’s members include parents with disabilities and their children who are likely to encounter the same discrimination encountered by the Barbers.
59. CCDC’s members, including but not limited to the Barbers, have been injured and will continue to be injured by Defendants’ discrimination described above.
60. The elimination of discrimination, such as that of Defendants and the integration of persons with disabilities into the community are at the core of CCDC’s organizational purpose.
61. The participation of individual CCDC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.
62. The Barbers are family members of ACBC. 63. ACBC’s purpose is to promote the independence, equality and opportunities for blind and visually impaired individuals in the state of Colorado. 64. ACBC’s members include parents who are blind and their children, who are likely to encounter the same discrimination encountered by the Barbers. 65. ACBC’s members, including but not limited to the Barbers, have been injured and will continue to be injured by Defendants’ discrimination described above.
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66. The elimination of discrimination, such as that of Defendants and the integration of blind persons into the community are at the core of ACBC’s organizational purpose.
67. The participation of individual ACBC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.
Claim I: Violation of Title II of the Americans with Disabilities Act 68. Plaintiffs reallege and incorporate by reference the allegations set forth in this Complaint as if fully set forth herein. 69. Defendants are public entities as that term is used in 42 U.S.C. § 12132 and the individuals responsible for administering those entities. 70. Defendants have discriminated against Plaintiffs on the basis of disability, in violation of 42 U.S.C. § 12132 and its implementing regulations, as more fully described above. 71. Such discrimination includes but is not limited to discrimination against Plaintiffs Marcia Barber, CCDC and ACBC in that Defendants refuse to make reasonable modifications in their policies, practices and procedures to avoid discrimination on the basis of disability. 72. Plaintiffs have been injured and aggrieved by, and will continue to be injured and aggrieved by, Defendants’ discrimination. 73. Such injuries include but are not limited to:
a. Injuries suffered and to be suffered by Plaintiff Marcia Barber caused by Defendants’ discrimination against her;
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b. Injuries suffered and to be suffered by Plaintiffs Julianna and Madeline Barber caused by Defendants’ discrimination against Plaintiff Marcia Barber; and
c. Injuries suffered and to be suffered by Plaintiffs CCDC and ACBC based on injuries to their members, including but not limited to Plaintiffs Marcia, Julianna and Madeline Barber, caused by Defendants’ discrimination against individuals with disabilities.
Claim II: Violation of Section 504 of the Rehabilitation Act 74. Plaintiffs reallege and incorporate by reference the allegations set forth in this Complaint as if fully set forth herein. 75. Defendants Department and Division receive federal financial assistance as that term is used in 29 U.S.C. § 794. Defendants Cooke and Vecchi are the individuals responsible for administering the relevant programs. 76. Defendants have discriminated against Plaintiffs on the basis of disability, in violation of 29 U.S.C. § 794 and its implementing regulations, as more fully described above. 77. Such discrimination includes but is not limited to discrimination against Plaintiffs Marcia Barber, CCDC and ACBC in that Defendants refuse to make reasonable modifications in their policies, practices and procedures to avoid discrimination on the basis of disability. 78. Defendants’ discrimination is intentional or, at the very least, represents deliberate indifference to the strong likelihood that pursuit of the policies at issue here
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would likely result in a violation of federally protected rights. Such intent and/or deliberate indifference includes, but is not limited to, Defendants’ repeated denials of Plaintiff Marcia Barber’s specific requests for reasonable modifications based on her federally protected rights to such modifications.
79. Plaintiffs have been injured and aggrieved by, and will continue to be injured and aggrieved by, Defendants’ discrimination.
80. Such injuries include but are not limited to: a. Injuries suffered and to be suffered by Plaintiff Marcia Barber caused by Defendants’ discrimination against her; b. Injuries suffered and to be suffered by Plaintiffs Julianna and Madeline Barber caused by Defendants’ discrimination against Plaintiff Marcia Barber; and c. Injuries suffered and to be suffered by Plaintiffs CCDC and ACBC based on injuries to their members, including but not limited to Plaintiffs Marcia, Julianna and Madeline Barber, caused by Defendants’ discrimination against individuals with disabilities. Relief Requested
WHEREFORE, Plaintiffs respectfully request: 1. That this Court assume jurisdiction; 2. That this Court declare the actions of Defendants described in this
Complaint to be in violation of Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;
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3. That this Court enter an injunction in favor of Plaintiffs Marcia and Madeline Barber, the Colorado Cross-Disability Coalition, and the American Council of the Blind of Colorado ordering Defendants to cease discrimination on the basis of disability in the administration of the driver’s license program;
4. That this Court award Plaintiffs Marcia and Julianna Barber compensatory damages under the Rehabilitation Act against Defendants Department and Division;
5. That this Court award Plaintiffs their reasonable attorneys’ fees and costs; and
6. That this Court award such additional or alternative relief as may be just, proper and equitable.
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JURY DEMAND: Plaintiffs demand a jury for all claims properly tried to a jury. Respectfully submitted,

s/ Amy Farr Robertson Amy Farr Robertson (arob@foxrob.com) Timothy P. Fox (tfox@foxrob.com) Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 Voice: 303.595.9700 Fax: 303.595.9705

Kevin W. Williams, Legal Program Director (kwilliams@ccdconline.org) Carrie Ann Lucas, Equal Justice Works Fellow (clucas@ccdconline.org) Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: 303.839.1775 Fax: 303.839.1782

Attorneys for Plaintiff Dated: January 20, 2006
Address of Plaintiffs Marcia, Julianna and Madeline Barber 1149 Tulip Place Colorado Springs, CO 80907 Address of Plaintiff Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Address of Plaintiff American Council of the Blind of Colorado, Inc. 1536 Wynkoop Street Suite #203 Denver, CO. 80204
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 </s> Case 1:05-cv-00807-REB-CBS Document 40 Filed 02/17/06 USDC Colorado Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 05-cv-807-REB-CBS

JULIANNA BARBER, by and through her next friend, Marcia Barber; MADELINE BARBER, by and through her next friend, Marcia Barber; MARCIA BARBER; COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; and AMERICAN COUNCIL OF THE BLIND OF COLORADO, INC., a Colorado non-profit corporation,

Plaintiffs,

v.

STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES; M. MICHAEL COOK, in her official capacity as Executive Director of the Colorado Department of Revenue; and JOAN VECCHI, in her official capacity as Senior Director of the Colorado Division of Motor Vehicles,

Defendants.

ANSWER

Defendants, through the Colorado Attorney General, hereby submit their Answer to the Second Amended and Supplemental Complaint (the “Amended Complaint”).
INTRODUCTION 1. With regard to paragraph 1 of the Amended Complaint, Defendants state that applicable Colorado law relating to instruction permits for minor drivers speaks for itself, therefore to the extent that any allegation in paragraph 1 differs from or is inconsistent with the Colorado law, the allegation is denied. Defendants admit that Marcia Barber requested that Julianna be permitted to drive while accompanied by her grandfather. Defendants deny the remaining allegations contained in paragraph 1 of the Amended Complaint.

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JURISDICTION AND VENUE 2. Defendants admit the allegations contained in paragraph 2 of the Amended Complaint. 3. Defendants admit the allegations contained in paragraph 3 of the Amended Complaint. 4. Defendants admit that Julianna Barber is 16 years of age. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 4 of the Amended Complaint and therefore deny the same. 5. Defendants admit that Madeline Barber was born on January 14, 1992. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 5 of the Amended Complaint and therefore deny the same. 6. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 6 of the Amended Complaint and therefore deny the same. 7. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 7 of the Amended Complaint and therefore deny the same. 8. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 8 of the Amended Complaint and therefore deny the same.
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9. Defendants admit the allegations contained in paragraph 9 of the Amended Complaint.
10. Defendants admit the allegations contained in paragraph 10 of the Amended Complaint.
11. Defendants admit the allegations contained in paragraph 11 of the Amended Complaint.
12. Defendants admit the allegations contained in paragraph 12 of the Amended Complaint.
13. Defendants admit that the Department of Revenue and the Division of Motor Vehicles receive federal financial assistance. Defendants deny the remaining allegations contained in paragraph 13 of the Amended Complaint.
14. Defendants admit the allegations contained in paragraph 14 of the Amended Complaint.
15. Defendants deny the allegations contained in paragraph 15 of the Amended Complaint.
16. Defendants admit the allegations contained in paragraph 16 of the Amended Complaint.
17. With regard to paragraph 17 of the Amended Complaint, Defendants admit that from July 1, 2003 to June 30, 2004, the Department of Revenue and the Division of Motor Vehicles received federal funds. Defendants deny the remaining allegations contained in paragraph 17 of the Amended Complaint.
18. With regard to paragraph 18 of the Amended Complaint, Defendants admit that from July 1, 2002 to June 30, 2003, the Department of Revenue and the Division of
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Motor Vehicles received federal funds. Defendants deny the remaining allegations contained in paragraph 18 of the Amended Complaint.
FACTS 19. With regard to paragraph 19 of the Amended Complaint, Defendants state that the Colorado Session Laws speak for themselves, and to the extent that any allegation in paragraph 19 differs from or is inconsistent with the Colo. Laws 1999 ch. 334, sec. 1(c) and (d), the allegation is denied. 20. With respect to the allegations contained in paragraph 20 of the Amended Complaint, Defendants state that the statute speaks for itself, and to the extent that any allegation in paragraph 20 differs from or is inconsistent with the statute, the allegation is denied. 21. With respect to the allegations contained in paragraph 21 of the Amended Complaint, Defendants state that the statute speaks for itself, and to the extent that any allegation in paragraph 21 differs from or is inconsistent with the statute, the allegation is denied. 22. With respect to the allegations contained in paragraph 22 of the Amended Complaint, Defendants state that the statute speaks for itself, and to the extent that any allegation in paragraph 22 differs from or is inconsistent with the statute, the allegation is denied. 23. Defendants admit the allegations contained in paragraph 23 of the Amended Complaint. 24. With respect to the allegations contained in paragraph 24 of the Amended Complaint, Defendants state that the statute speaks for itself, and to the extent that any
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allegation in paragraph 24 differs from or is inconsistent with the statute, the allegation is denied.
25. Defendants admit that on or about October 13, 2004, Julianna Barber obtained a minor’s instruction permit. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 25 of the Amended Complaint and therefore deny the same.
26. With respect to the allegations contained in paragraph 26 of the Amended Complaint, Defendants state that the statute speaks for itself, and to the extent that any allegation in paragraph 26 differs from or is inconsistent with the statute, the allegation is denied.
27. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 27 of the Amended Complaint and therefore deny the same.
28. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 28 of the Amended Complaint and therefore deny the same.
29. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 29 of the Amended Complaint and therefore deny the same.
30. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 30 of the Amended Complaint and therefore deny the same.
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31. With respect to the allegations contained in paragraph 31 of the Amended Complaint, Defendants admit that Marcia Barber made an inquiry to the Motor Vehicle Division regarding the Colorado Revised Statutes as they relate to instruction permits for minor drivers. Defendants deny the remaining allegations contained in paragraph 31 of the Amended Complaint.
32. With respect to the allegations contained in paragraph 32 of the Amended Complaint, Defendants admit that Steve Tool responded to Marcia Barber’s inquiry. Defendants further state that the November 22, 2004 letter speaks for itself, and to the extent that any allegation in paragraph 24 differs from or is inconsistent with the letter, the allegation is denied. Defendants deny the remaining allegations contained in paragraph 32 of the Amended Complaint.
33. With respect to the allegations contained in paragraph 33 of the Amended Complaint, Defendants state that the December 2, 2004 letter speaks for itself, and to the extent that any allegation in paragraph 33 differs from or is inconsistent with the letter, the allegation is denied.
34. With respect to the allegations contained in paragraph 34 of the Amended Complaint, Defendants admit that Marcia Barber called John Suthers, the Attorney General of the Colorado. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 34 of the Amended Complaint and therefore deny the same.
35. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 35 of the Amended Complaint and therefore deny the same.
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36. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 36 of the Amended Complaint and therefore deny the same.
37. With respect to the allegations contained in paragraph 33 of the Amended Complaint, Defendants admit that Marcia Barber wrote to Suthers on January 21 and 25, 2005. Defendants state that the writings speak for themselves, and to the extent that any allegation in paragraph 37 differs from or is inconsistent with the writings, the allegation is denied.
38. With respect to the allegations contained in paragraph 38 of the Amended Complaint, Defendants admit that Chris Menendez wrote a letter to the Colorado Attorney General’s Office. Defendants state that the letter speaks for itself, and to the extent that any allegation in paragraph 38 differs from or is inconsistent with the letter, the allegation is denied.
39. With respect to the allegations contained in paragraph 39 of the Amended Complaint, Defendants admit that the Colorado Attorney General’s Office wrote a letter to Chris Menendez on February 23, 2005. Defendants state that the letter speaks for itself, and to the extent that any allegation in paragraph 39 differs from or is inconsistent with the letter, the allegation is denied.
40. With respect to the allegations contained in paragraph 40 of the Amended Complaint, Defendants state that the statute speaks for itself, and to the extent that any allegation in paragraph 40 differs from or is inconsistent with the statute, the allegation is denied.
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41. With respect to the allegations contained in paragraph 41 of the Amended Complaint, Defendants state that the statute speaks for itself, and to the extent that any allegation in paragraph 41 differs from or is inconsistent with the statute, the allegation is denied.
42. Defendants deny the allegations contained in paragraph 42 of the Amended Complaint.
43. Defendants admit the allegations contained in paragraph 43 of the Amended Complaint.
44. With respect to the allegations contained in paragraph 44 of the Amended Complaint, Defendants state that the statute speaks for itself, and to the extent that any allegation in paragraph 44 differs from or is inconsistent with the statute, the allegation is denied. Defendants deny all other allegations contained in paragraph 44 of the Amended Complaint.
45. With respect to the allegations contained in paragraph 45 of the Amended Complaint, Defendants state that the statute speaks for itself, and to the extent that any allegation in paragraph 45 differs from or is inconsistent with the statute, the allegation is denied.
46. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 46 of the Amended Complaint and therefore deny the same.
47. Defendants admit the Julianna Barber received her driver’s license on November 14, 2005.
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48. Defendants deny the allegations contained in the first sentence of paragraph 48 of the Amended Complaint. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in the second sentence of paragraph 48 of the Amended Complaint and therefore deny the same.
49. Defendants deny the allegations contained in the paragraph 49 of the Amended Complaint.
50. Defendants deny the allegations contained in paragraph 50 of the Amended Complaint.
51. Defendants deny the allegations contained in paragraph 51 of the Amended Complaint, including all subparts thereto.
52. Defendants deny the allegations contained in paragraph 52 of the Amended Complaint, including all subparts thereto.
53. Defendants deny the allegations contained in the paragraph 53 of the Amended Complaint.
54. The allegations of paragraph 54 of the Amended Complaint constitute a prayer for relief requiring no answer, but to the extent the paragraph may be construed to allege facts against the Defendants, the allegations are denied.
55. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 55 of the Amended Complaint and therefore deny the same.
56. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 56 of the Amended Complaint and therefore deny the same.
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57. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 57 of the Amended Complaint and therefore deny the same.
58. Defendants deny the allegations contained in paragraph 58 of the Amended Complaint.
59. Defendants deny the allegations contained in paragraph 59 of the Amended Complaint.
60. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 60 of the Amended Complaint and therefore deny the same.
61. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 61 of the Amended Complaint and therefore deny the same.
62. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 62 of the Amended Complaint and therefore deny the same.
63. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 63 of the Amended Complaint and therefore deny the same.
64. Defendants deny the allegations contained in paragraph 64 of the Amended Complaint.
65. Defendants deny the allegations contained in paragraph 65 of the Amended Complaint.
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66. Defendants deny that they discriminated against the Plaintiffs. Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in paragraph 66 of the Amended Complaint and therefore deny the same.
67. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 67 of the Amended Complaint and therefore deny the same.
CLAIM I: THE AMERICANS WITH DISABILITIES ACT 68. Defendants incorporate by reference all responses contained in the preceding paragraphs in this Answer as though fully set forth herein. 69. Defendants admit that the Department of Revenue and the Division of Motor Vehicles are public entities as defined by 42 U.S.C. § 12131. 70. Defendants deny the allegations contained in paragraph 70 of the Amended Complaint. 71. Defendants deny the allegations contained in paragraph 71 of the Amended Complaint. 72. Defendants deny the allegations contained in paragraph 72 of the Amended Complaint. 73. Defendants deny the allegations contained in paragraph 73 of the Amended Complaint, including all subparts thereto.
CLAIM II: SECTION 504 OF THE REHABILITATION ACT 74. Defendants incorporate by reference all responses contained in the preceding paragraphs in this Answer as though fully set forth herein.
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75. Defendants admit that the Department of Revenue and the Division of Motor Vehicles receive federal financial assistance. Defendants admit that H. Michael Cooke is the Executive Director of the Colorado Department of Revenue and that Joan Vecchi is the Senior Director of the Colorado Division of Motor Vehicles.
76. Defendants deny the allegations contained in paragraph 76 of the Amended Complaint.
77. Defendants deny the allegations contained in paragraph 77 of the Amended Complaint.
78. Defendants deny the allegations contained in paragraph 78 of the Amended Complaint.
79. Defendants deny the allegations contained in paragraph 79 of the Amended Complaint.
80. Defendants deny the allegations contained in paragraph 80 of the Amended Complaint.
81. The allegations of the “Relief Requested” section of the Amended Complaint constitute a prayer for relief requiring no answer, but to the extent the paragraphs may be construed to allege facts against the Defendants, the allegations are denied.
82. Defendants deny each and every allegation contained within the Amended Complaint unless expressly admitted herein.
AFFIRMATIVE DEFENSES 1. The Amended Complaint fails, in whole or in part, to state a claim upon which relief may be granted; 2. Plaintiffs failed to mitigate their damages, if any;
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3. Plaintiffs failed to fulfill all conditions precedent to bringing this action; 4. Plaintiffs’ claimed damages, if any, were caused by their own acts or omissions, or were caused by the acts or omissions of third parties over whom the Defendants had no control or right of control; 5. Plaintiffs’ claims against Defendants may be barred in whole or in part by the doctrine of Sovereign Immunity pursuant to the Eleventh Amendment, and/or absolute, limited or qualified immunity; 6. Defendants affirmatively assert that Plaintiffs’ statutory rights have not been violated and that Plaintiffs have been afforded all of the rights and privileges granted by the Americans with Disabilities Act and the Rehabilitation Act; 7. Defendants’ actions and applicable state laws were/are supported by legitimate and rational governmental interests, goals and objectives; 8. Defendants’ actions and applicable state laws were/are supported by compelling interests; 9. Plaintiffs’ claims are barred by the doctrines of waiver, estoppel and laches; 10. Plaintiffs’ claims are not ripe; 11. Plaintiffs’ claims for injunctive relief are moot; 12. One or more of the Plaintiffs lack standing to bring this action; 13. The Defendants deny that any action on their part constitutes a violation of any statutory provision cited in the Amended Complaint; 14. The Defendants reserve the right to add additional defenses presently unknown according to the facts of the Amended Complaint that may become known during the course of discovery.
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WHEREFORE, Defendants having fully answered the Amended Complaint, pray that the same be dismissed, and that they be awarded the costs incurred in defending this suit, including expert witness fees, attorney fees, and such other and further relief as may be proper and just under the circumstances.
Respectfully submitted this 17th day of February, 2006. JOHN W. SUTHERS Attorney General s/ James X. Quinn ELIZABETH H. McCANN* Deputy Attorney General JAMES X. QUINN* Assistant Attorney General Litigation and Employment Law Section Attorneys for Defendants 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-4307 *Counsel of Record
CERTIFICATE OF SERVICE I certify that on February 17, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Amy F. Robertson arob@foxrob.com
s/ James X. Quinn
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-807-RB-CBS JULIANNA BARBER, by and through her next friend, Marcia Barber; MADEINE BARBER, by and through her next friend, Marcia Barber; MARCIA BARBER; COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; and AMERICAN COUNCIL OF THE BLIND OF COLORADO, INC., a Colorado non-profit corporation, Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES; M. MICHAEL COOK, in her individual and official capacity as Executive Director of the Colorado Department of Revenue; and STEVE TOOL, in his individual and official capacity as Senior Director of the Colorado Division of Motor Vehicles, Defendants.
MEMORANDUM BRIEF IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS
The Defendants, through the Colorado Attorney General, respectfully submit the following Memorandum Brief in support of their Motion to Dismiss.
I. PRELIMINARY STATEMENT Plaintiffs brought this action seeking damages, declaratory, and injunctive relief against the Colorado Department of Revenue, the Division of Motor Vehicles, the Executive Director of the Department of Revenue and the Senior Director of the Division of Motor Vehicles, all based on § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”), and Title II of the Americans with Disabilities Act, 42 U.S.C.

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§ § 12131 – 34 (the “ADA”). Specifically, Plaintiffs seek a declaration that the actions of all Defendants described in the Amended Complaint constitute a violation of the Rehabilitation Act and the ADA; an injunction ordering Defendants to cease the alleged discrimination; and damages under the Rehabilitation Act against the Colorado Department of Revenue and the Colorado Division of Motor Vehicles. Plaintiffs also seek an award of attorney fees and costs.
Plaintiffs contend that Defendants violated the above statutes which prohibit discrimination based on one's disabilities. Plaintiffs, a mother and her two daughters, maintain that the statute in effect prior to July 1, 2005 failed to allow driving supervision by a person other than a parent, stepparent or guardian who is a licensed driver when a 15 year old obtains an instructional permit. Because Marcia Barber (mother) is blind, and thus not licensed to operate a motor vehicle, she was not qualified pursuant to statute to supervise her daughter while her daughter accumulated experience necessary for the daughter to receive an unrestricted drivers license when she turns sixteen. Plaintiffs maintain that Defendants failed to make reasonable modifications by allowing Julianna’s (daughter) grandfather to supervise her driving while she has her instructional permit prior to her sixteenth birthday.
II. STATEMENT OF UNDISPUTED MATERIAL FACTS1 1. Julianna Barber is a resident of Colorado Springs, Colorado. She is 15 years old. (Amended Complaint at ¶ 4).
1 For purposes of this motion only, except as otherwise indicated, Defendants accept the facts as alleged by Plaintiffs as true and assumes that Plaintiffs can prove the facts alleged in the Amended Complaint.
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2. Madeline Barber is a resident of Colorado Springs, Colorado. She is 13 years old. (Amended Complaint at ¶ 5).
3. Marcia Barber is a resident of Colorado Springs, Colorado, and is the mother of Julianna and Madeline. She suffers from retinitis pigmentosa and is limited in the major life activity of seeing. (Amended Complaint at ¶¶ 6-7).
4. Colorado Residents are eligible to apply for a minor’s driver’s license at age 16. Colo. Rev. Stat. § 42-2-104 (1)(c). (Amended Complaint at ¶ 23).
5. At the age of 15, individuals may obtain a minor’s instruction permit under certain circumstances. (Amended Complaint at ¶ 24).
6. When only 15 years old, a person must be enrolled in an approved driver education course. In addition, the person must provide a written statement signed by the “parent, stepparent, or guardian and the instructor…” establishing such enrollment. Colo. Rev. Stat. § 42-4-106(1)(b). (Amended Complaint at ¶¶ 24-25).
7. Further, the permit issued pursuant to this section only authorizes the minor to drive “under the supervision of the parent, stepparent or guardian who cosigned the application for the minor’s instruction permit if such parent, stepparent or guardian holds a valid driver’s license.” (Amended Complaint at ¶ 25).
8. Such permit also entitles the applicant to drive a motor vehicle, which is marked so as to indicate that it is a motor vehicle used for instruction and which is properly equipped for such instruction upon highways when accompanied by or under
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the supervision of an approved driver education instructor who holds a valid driver’s license. (See Attachment A, prior version of Colo. Rev. Stat. § 42-2-106(b)). 2
9. Julianna Barber was born on September 8, 1989. She turned 15 on September 8, 2004. (Amended Complaint at ¶ 28).
10. On October 13, 2004, Julianna Barber obtained a minor’s instruction permit. She completed a driver’s education course on October 23, 2004. (Complaint at ¶ 27).
11. Julianna’s father, though not disabled, does not have a driver’s license. (Amended Complaint at ¶ 30).
12. Marcia Barber does not have a driver’s license. (Amended Complaint at ¶ 31).
13. In October of 2004, Marcia Barber inquired if Julianna could be permitted to drive with her grandfather, a licensed driver, until Julianna turned 16 years of age. These requests were denied because the state statute only permitted a licensed parent, stepparent, or guardian to supervise a minor’s driving. Additionally, Julianna, like any child who does not have a parent, stepparent or guardian who is a licensed driver, was entitled to drive a properly marked and properly equipped for instruction motor vehicle, under the supervision of an approved driver education instructor who holds a valid
2 A trial court can take judicial notice of state statutes. F.R.E. 201; U.S. v. One (1) 1975 Thunderbird 2-Door Hardtop White in Color with Burnt Orange Vinyl Landau Top, Serial No. 5J87A127636, Utah License Cbe 492 576 F.2d 834, 836 (10th Cir.1978)
4

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driver’s license. (Complaint at ¶¶ 33-43; Attachment A, prior version of Colo. Rev. Stat. § 42-2-106 (1)(b)).
14. Once a minor who has an instruction permit turns 16 years of age, he or she can drive with any licensed driver over the age of 21. (Attachment A, prior version of Colo. Rev. Stat. § 42-2-106 (1)(a)).
15 Effective July 1, 2005, the Colorado Legislature amended the above referenced statute. A minor driver under the age of 16, who has obtained an instruction permit is now entitled to drive under the supervision of the parent, stepparent, GRANDPARENT WITH POWER OF ATTORNEY, or guardian who cosigned the application for the minor’s instruction permit if such parent, stepparent, Grandparent with power of attorney, or guardian holds a valid driver’s license. (See Attachment B, Amended Colo. Rev. Stat. § 42-2-106(b) effective July 1, 2005).
III. STANDARDS FOR DISMISSAL If accepting all well pleaded allegations as true and drawing all reasonable inferences in favor of the Plaintiffs, it appears beyond doubt that no set of facts entitle Plaintiffs to relief, then the court should grant a motion to dismiss. See Tri-Crown, Inc. v. American Fed. Sav. & Loan Ass’n, 908 F. 2d 578, 582 (10th Cir. 1990).
IV. ARGUMENT A. The ADA and the Rehabilitation Act
"The Rehabilitation Act is materially identical to and the model for the ADA…." Crawford v. Indiana Department of Corrections, 115 F.3d 481, 483 (7th Cir. 1997). The standards adopted by Title II of the ADA for State and local government services are
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generally the same as those required under section 504 for federally assisted programs and activities. 28 CFR Pt. 35, App. A, Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services (Published July 26, 1991). A Rehabilitation Act claim has the additional element of receipt of federal funds. Other than this, the elements are the same. Thus, the discussion of the elements required under the ADA is equally applicable to consideration of the Rehabilitation Act.3
The Americans with Disabilities Act of 1990 (“ADA”) is found at 42 U.S.C. §§ 12101-12213. Title II, 42 U.S.C. § 12131-12132, prohibits discrimination in the provision of government programs, activities and services against a qualified individual with a disability:
No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. Regulations promulgated under the ADA and the Rehabilitation Act forbid public entities from denying a disabled person "the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities." 28 C.F.R. § 35.130(b)(2).
3 Unless otherwise noted, cases under the ADA and the Rehabilitation Act may be cited interchangeably for the two acts. See Toyota Motor Manuf. v. Williams, 534 U.S. 184, 193-94 (2002); Bragdon v. Abbott, 524 U.S. 624, 631 (1998); “ ‘Because the language of disability used in the ADA mirrors that in the Rehabilitation Act, we look to cases construing the Rehabilitation Act for guidance when faced with an ADA challenge,’ and
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The regulations require public entities to "make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid discrimination
on the basis of disability, unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7). 4
In evaluating Plaintiffs' claims, the Court should apply the general standard of
Tyler v. City of Manhattan, 849 F.Supp. 1429 (D.Kan.1994). That standard requires a
Plaintiff to prove:
(1) that he [or she] is a qualified individual with a disability;
(2) that he [or she] was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and
(3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.
Id. at 1439. "This general standard, which closely tracks the statute's language, is plainly correct." Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999); Amirault v. City of Roswell, 120 F.3d 270 (10th Cir. 1997).
B. Plaintiffs were not denied access to services or programs because of a disability.
_________________________ vice versa.” Cummings v. Norton, __ F.3d __, 2005 WL 15464, at *__ n.2 (10th Cir. 2005) (quoting Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th Cir.1999)). 4 Title II of the ADA uses the term "reasonable modification," whereas Title I of the ADA uses the term "reasonable accommodation." Notwithstanding the different statutory language, there appears to be little substantive difference between the terms. See 42 U.S.C. § 12111(9),(10); 28 C.F.R. § 35.130(b)(7); Dahlberg v. Avis, 92 F. Supp. 2d 1091, 1105 –1106 (D. Colo. 2000); Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 816 n. 26 (9th Cir.1999).
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Both the ADA and the Rehabilitation Act require a claimant to show that the defendant’s allegedly improper conduct was done because of claimant’s disability. See 29 U.S.C. § 794 (“solely by reason of her or his disability”); 42 U.S.C. § 12132 (“by reason of such disability”). “The Act prohibits programs receiving federal financial assistance from discriminating against handicapped persons solely because of that handicap. Welsh v. City of Tulsa, Okl. 977 F.2d 1415, 1417 (10th Cir. 1992). “The duty to provide ‘reasonable accommodations’ under the ADA and the Rehabilitation Act arises only when a policy discriminates on the basis of disability.” Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (emphasis in original). “A plaintiff proceeding under Title II of the ADA must, similar to a Section 504 plaintiff, prove that the exclusion from participation in the program was ‘solely by reason of disability.” Weinreich v. Lost Angeles County Metro. Transp. Auth., 114 F.3d at 978; Sandison v. Michigan High Sch. Athletic Ass’n, 64 F.3d 1026, 1036-37 (6th Cir. 1995). To establish that defendant’s alleged discrimination was “based on [claimant’s] disability . . . the plaintiff must ‘present some affirmative evidence that disability was a determining factor in [defendant’s] decision.’” Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1259 (10th Cir. 2001) (quoting Morgan v. Hitli, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). The ADA forbids discrimination against a qualified individual because of the disability, not "discrimination on other bases." Buckley v. Consl. Edison Co. of N.Y., Inc., 155 F.3d 150, 156 (2nd Cir. 1998).
The statute of which Plaintiffs complain is facially neutral. There is no discrimination based upon disability. Indeed, any minor child that is less than 16 years
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of age and does not have a parent, stepparent, or guardian that is a licensed driver is affected by the statute. The statute applies in the event the parent, stepparent or guardian is unlicensed due to revocation of their license, due to an inability to obtain a license for any reason, or simply because the parent step parent or guardian chooses not to drive. In such instances the minor driver may obtain driving experience before his or her 16th birthday with an approved driver education instructor who holds a valid driver’s license. After the minor turns 16, he or she can drive with his or her instruction permit with any licensed driver over the age of 21. Thus, there is no burden placed on the Plaintiffs based on disability, much less “solely by reason of her or his disability”.
Moreover, even if there were some distinction based on disability, such distinctions are valid as long as there is a rational basis for the distinction. See e.g. Thompson v. Colorado, 278 F.3d 1020, 1030-31 (10th Cir. 2001) (“Thus, a state statute violates the Equal Protection Clause if it makes distinctions between disabled and nondisabled without a rational justification.”). C. None of the individually named Plaintiffs state a valid claim under the ADA
or Rehabilitation Act. 1. Elements of the claim. As stated above, Plaintiffs are required to allege and prove:
(1) that he [or she] is a qualified individual with a disability; (2) that he [or she] was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.
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2. Marcia Barber While Marcia Barber is disabled, she is not a qualified individual for purposes of the ADA or Rehabilitation Act. To the extent she maintains that she was not permitted to supervise her daughter’s driving, she was not otherwise qualified to do so because she is not a licensed driver. For purposes of provision of prohibiting discrimination against an "otherwise qualified handicapped individual" in federally funded programs "solely by reason of his handicap," an "otherwise qualified person" is one who is able to meet all of the program's requirements in spite of his handicap. Southeastern Community College v. Davis, 442 U.S. 397 (1999). An ADA plaintiff bears the burden of proving that he is a “qualified individual with a disability.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). Under Title II, a “qualified individual” is someone with a disability who “with or without reasonable modifications . . . meets the essential eligibility requirements” to receive public services or participate in a public program.” 42 U.S.C. § 12131(2). Because Marcia is not a licensed driver, and does not meet the eligibility requirements to become a licensed driver, or to supervise a minor driver, she is not a qualified individual. Therefore, she fails to meet the first element of a claim. Additionally, she has not been, and does not allege that she was denied access to a service or program because of her disability. Thus, she meets none of the requisite elements necessary to pursue an individual claim. She has sustained no injury at all. See e.g. Simenson v. Hoffman, 1995 WL 631804, at *2 (N.D.Ill. Oct. 24, 1995) (dismissing parents' ADA Title III claim of associational discrimination where their disabled child was refused treatment and parents could not show that the denial of
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services and subsequent ejection from the facility constituted a separate and distinct denial of services to them);
3. Julianna Barber There is no allegation in the Amended Complaint that Juliana Barber is disabled. “[A]s a threshhold matter, any plaintiff asserting a claim under the ADA must establish that he or she is a ‘qualified individual with a disability.’” Lanman v. Johnson County, __ F.3d __, 2004 WL 3017258, at *3 (10th Cir. 2004) (quoting 42 USC § 12112(a)). An ADA plaintiff bears the burden of proving that he is a “qualified individual with a disability.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). Accordingly, she fails to meet the first element of a disability claim. Additionally, she has not been denied access to a service or program. She has obtained her instruction permit. With such permit, before her 16th birthday, because neither of her parents were licensed drivers, she could gain driving experience in the presence of an authorized driving instructor. Under the current statute she can gain driving experience in the presence of her grandfather. Thus she has not been excluded from participation in or denied the benefits of Colorado’s driver’s program. Thus, she too, fails to allege any of the requisite elements necessary to state an individual claim. 4. Madeline Barber
Madeline Barber also fails to meet a single element of an ADA claim. First, there is no allegation that she is disabled. Second, even if she were disabled, she is not otherwise qualified to receive an instruction permit or a driver’s license because she is
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only 13 years old. To get relief under the ADA or the Rehabilitation Act, a claimant must be “disabled” (or “handicapped”) and otherwise qualified. School Bd. of Nassau County v. Arline, 480 U.S. 273, 285 (1987). “An otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.” Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979); Arline, 480 U.S. at 287 n.17; Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981). It necessarily follows that she has not been denied access to Colorado’s driving program. Accordingly, she too fails to state a claim upon which relief can be granted.
5. The Colorado Cross-Disability Coalition and the American Council of the Blind of Colorado, Inc. lack standing.
Federal jurisdiction is limited by Article III, § 2, of the U.S. Constitution to actual cases and controversies. As a result, the plaintiffs' standing to sue "is the threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Courts must assess whether standing exists based on the facts as they existed at the time the lawsuit was filed. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-91, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir.2000) (citation omitted). To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an "injury in fact," (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
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An "injury in fact" is a harm that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Id. at 560 (internal quotation marks and citations omitted). The plaintiff must show that he or she "sustained or is immediately in danger of sustaining some direct injury as the result of the challenged ... conduct and [that] the injury or threat of injury [is] both real and immediate...." City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (internal quotation marks and citations omitted).
In addition to these constitutional limitations, there are also three prudential limitations on standing: (1) generally, there is no jurisdiction over "generalized grievances" shared by all or a large class of citizens; (2) a plaintiff must assert his or her own legal rights and cannot rest his or her claim to relief on the legal rights of third parties. Warth, 422 U.S. at 499-500 (finding that without such limitations, courts would decide abstract questions of wide public significance better left to the legislative branch) (citations omitted); (3) "plaintiff's grievance must arguably fall within the zone of interests protected or regulated by the statutory provision ... invoked in the suit." Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
On a motion to dismiss, a district court must "accept all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir.1994) (quoting Warth, 422 U.S. at 501). Standing, however, "cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear on the record." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (internal quotation
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marks and citations omitted). "It is the burden of the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating he is a proper party to invoke judicial resolution of the dispute." Id. (internal quotation marks and citations omitted).
Here, neither the Colorado Cross-Disability Coalition (“CCDC”) nor the American Council of the Blind of Colorado, Inc. (“ACBC”) allege an injury in fact. An organization may attempt to assert standing on its own behalf. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n. 19, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). However, when asserting standing on its own behalf, an organization must be able to show some injury to the association itself that meets the constitutional standing requirements as well as the prudential limitations on standing, unless Congress evinced a clear intent to eliminate those prudential limitations under the statute in question. See id. at 378-79. As stated in Havens, courts conduct the same inquiry with respect to an organizational plaintiff as with an individual plaintiff: has it "alleged such a personal stake in the outcome of the controversy as to warrant [ ] invocation of federal-court jurisdiction." Id. (internal quotation marks and citations omitted). Neither CCDC nor ACBC meets these requirements. The only allegations are that members of these organizations “are likely to encounter” alleged discrimination, and that members have allegedly been injured. These argumentative averments are insufficient to establish standing. D. Plaintiffs’ claim of Association discrimination fails as a matter of law.
Both Title I (employment discrimination) and Title III (public accommodations offered by private entities) of the ADA contain an association provision prohibiting
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discrimination based upon a non disabled plaintiff’s association with a disabled individual. These provisions are designed to prohibit discriminatory stereotypes relating to association with a disabled individual. Indeed, the EEOC Interpretive Guidance provides three examples of forbidden association discrimination: (1) refusal to hire where the employer makes an unfounded assumption that the employee will miss work in order to care for a disabled relative; (2) discharging an employee who does volunteer work with AIDS victims, due to fear that the employee may contract the disease; and (3) denying health benefits to a disabled dependent of an employee but not to other dependents, even where the provision of benefits to the disabled dependent would result in increased health insurance costs for the employer. 29 C.F.R. Pt. 1630.8 app at 349 (1996).
There is no association provision in Title II of the ADA. Plaintiffs’ claims are brought via Title II. Indeed, the only case law the undersigned could locate in the Tenth Circuit dealing with “association discrimination” were cases filed under Title I, of the ADA. In two cases from the Tenth Circuit, it is implied that there is no such claim for association discrimination in Title II.5 Specfically, in Morgan v. City of Albuquerque, 25 F.3d 918 (10th Cir. 1994), Morgan brought suit pursuant to § 1983 against Albuquerque. After the jury entered a defense verdict, Morgan filed a motion for new trial alleging that
5 Other circuits have held that although not expressly stated in the statutory language of Title II, the regulation implementing Title II implied that an association claim is allowed under Title II. See Innovative Health Systems v. City of White Plains, 117 F.3d 37 (2nd Cir. 1997)(Denial of zoning application based upon stereotypes and unfounded generalized fears associated with zoning application for a drug and alcohol rehabilitation center stated a claim under the ADA).
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the trial court improperly allowed the city to strike two jurors on the basis of their
association with physically disabled people.6 In affirming the denial of her motion for
new trial, the Tenth Circuit stated:
Plaintiff next contends that the use of peremptory challenges to strike veniremen who have an association with persons with physical disabilities violates the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Nothing in the ADA supports this contention. Even assuming that the ADA did bar use of peremptory challenges to remove physically disabled veniremen, there would be no grounds for an extension of such protection to persons who have some association with persons with disabilities--the ADA is intended only to remove discrimination against physically disabled persons themselves. Morgan v. City of Albuquerque, 25 F.3d at 920. Additionally, in McGuinness v.
University of New Mexico, 170 F.3d 974 (10th Cir. 1998), The Tenth Circuit affirmed the
denial of relief of a claim under the ADA association discrimination provision. In that
case McGuinness, a medical student, sued the University of New Mexico pursuant to
the ADA alleging that the University failed to accommodate him based on his
relationship with his disabled son.
In his complaint, Mr. McGuinness attempted to assert a claim under the ADA but failed to distinguish between Title I and Title II; neither did he raise a claim under the statute's "association discrimination" provision, 42 U.S.C. § 12112(b)(4). Whereas Title I proscribes discrimination against employees or prospective employees because of their disabilities, see 42 U.S.C. §§ 12111-12112, Title II bars public entities from discriminating on the basis of disability in the provision of programs and benefits. See 42 U.S.C. §§
6 The Plaintiff in that case, Morgan was also physically disabled, however, her disability was unrelated to the 1983 claim and her request for damages in the underlying 1983 case was not based on her disability.
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12131-12132. In his response to the medical school's motion for summary judgement, Mr. McGuinness attempted to (1) separate his Title I and Title II claims, (2) add a claim under the Rehabilitation Act of 1973, and (3) assert an "association discrimination" claim under the ADA. See Aplt.App. at 37476, 380-82.

.

.

.

.

The district court granted summary judgment for the medical school on the ground that Mr. McGuinness was not disabled within the meaning of the ADA. Although Mr. McGuinness was not allowed to amend his complaint, the district court nevertheless ruled on the "association discrimination" claim. See Aplt.App. at 25-26. It held that Mr. McGuinness did not offer facts sufficient to support a cause of action under § 12112(b)(4) because he was neither employed by the medical school, nor did he show that the medical school discriminated against him because of his association with his disabled son.

McGuinness v. University of New Mexico School of Medicine 170 F.3d at 977. In

analyzing McGuiness’ association claim, the Tenth Circuit applied only the Title I

analysis.

Because the "association discrimination" provision falls under Title I of the ADA, the plaintiff must show an employment relationship with the defendant. See Den Hartog, 129 F.3d at 1081-82. To state a claim under Title I of the ADA, the defendant must be "an employer, employment agency, labor organization, or joint labor-management committee" that employs the plaintiff. 42 U.S.C. § 12111(2),(4). Mr. McGuinness has failed to show the existence of such an employment relationship between himself and the medical school.
Id.

There were no reported cases based upon “association discrimination” in this circuit until the Tenth Circuit issued its decision in Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997). Den Hartog is a Title I case involving an employment
17

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decision. In that case Den Hartog brought an association discrimination claim against
his employer, a boarding school. Specifically, he alleged that he was terminated from
his job as a result of his association with his adult son who had bipolar disorder.7 In
analyzing the basis for the association discrimination provision in Title I, the Court
looked to the legislative purpose and various hypotheticals discussed at the House
Committee meetings.
The association provision has been the subject of very little litigation, and none in this court prior to the present case. It was apparently inspired in part by testimony before House and Senate Subcommittees pertaining to a woman who was fired from her long-held job because her employer found out that the woman's son, who had become ill with AIDS, had moved into her house so she could care for him. See H.R.Rep. No. 101-485, pt. 2, at 30 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 312 (citing this testimony as evidence of the need for the association provision). By the time the ADA was enacted, two separate House Committees had reported favorably on the bill (H.R.2273), and had issued Committee Reports describing certain intended applications (and unintended misapplications) of the association provision. The House Committee on Education and Labor posed the following pair of hypotheticals to illustrate the association provision's parameters: [A]ssume, for example that an applicant applies for a job and discloses to the employer that his or her spouse has a disability. The employer believes the applicant is qualified for the job. The employer, however, assuming without foundation that the applicant will have to miss work or frequently leave work early or both, in order to care for his or her spouse, declines to hire the individual for such reasons. Such a refusal is prohibited by this subparagraph. In contrast, assume that the employer hires the applicant. If he or she violates a neutral employer policy concerning
7 Hartog’s son had apparently attacked and threatened members of the school community.
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attendance or tardiness, he or she may be dismissed even if the reason for the absence or tardiness is to care for the spouse. The employer need not provide any accommodation to the nondisabled employee. The individuals covered under this section are any individuals who are discriminated against because of their known association with an individual with a disability. H.R.Rep. No. 101-485, pt. 2, at 61-62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 343-44.

.

.

.

.

In a floor debate held subsequent to the publication of these two reports, Congressman Bartlett, a sponsor of the bill, sought to answer what he characterized as some "frequent questions raised by business persons" about the ADA. See 136 Cong. Rec. H9072 (1990) (statement of Rep. Bartlett). One such question was the following: "If an able-bodied employee who is about to be terminated for cause, claims a relationship with a disabled individual, can he or she claim discrimination by association and be protected by the ADA?" Id. Congressman Bartlett answered that "[g]iven the hypothetical posed, the terminating employee would have to prove that the employer knew of the association and was terminating the employee because of that association, and not because he or she was otherwise [un]qualified." Id.
In addition, in providing a detailed analysis of association discrimination, the Tenth
Circuit went on to discuss how other circuits had analyzed the issues associated with
these types of claims.

The few appellate cases that have been decided under the association provision have involved situations squarely anticipated by the 101st Congress. In Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209 (4th Cir.1994), for example, an employee was terminated because she missed work repeatedly and extensively primarily to care for her disabled son. The terminated employee sued, alleging association discrimination. Consistent with the legislative intent expressed in the House Education and Labor Committee Report, however, the court rejected the plaintiff's claim. See
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id. at 214. See also H.R.Rep. No. 101-485, pt. 2, at 61-62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 344 ("If [a nondisabled employee] violates a neutral employer policy concerning attendance or tardiness, he or she may be dismissed even if the reason for the absence or tardiness is to care for the [disabled associate].").
Den Hartog v. Wasatch Academy 129 F.3d at 1082 –1083.

Interestingly, as discussed in Den Hartog, and as set forth in the congressional record that provides the guidelines and examples of association discrimination referenced above, an association discrimination claim cannot be based on a failure to accommodate the nondisabled–it can only be based on discrimination.

Although no court has yet addressed the issue, it appears from the language and legislative history of the ADA, and also from the EEOC's "interpretive guidance" thereto, that the protection afforded to non-disabled employees who have an association with a disabled person differs in one significant respect from that afforded to disabled employees. This difference is the application of the ADA's "reasonable accommodation" requirements.

.

.

.

.

The ADA states that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual ...." 42 U.S.C. § 12112(a). In the context of this general prohibition, the word "discriminate" is a term of art which includes "not making reasonable accommodations." See 42 U.S.C. § 12112(b)(5) (1994); 29 C.F.R. § 1630.9(a) (1996). By the plain terms of § 12112(b)(5), however, the ADA does not require an employer to make any "reasonable accommodation" to the disabilities of relatives or associates of an employee who is not himself disabled. Specifically, 42 U.S.C. § 12112(b)(5)(A) (1994) defines the term "discriminate" to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, ...." (emphasis added). Further, 42
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U.S.C. § 12112(b)(5)(B) (1994) defines "discriminate" to include "denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant." (emphasis added).

.

.

.

.

We are confident that the lack of any reference to the associates or relatives of the employee or applicant in Section 12112(b)(5)'s articulation of the ADA's "reasonable accommodation" requirement is not due to any inadvertent omission. In its Report, the House Education and Labor Committee clearly expressed its intention that under the association provision, "[t]he employer need not provide any accommodation to the nondisabled employee." H.R.Rep. No. 101-485, pt. 2, at 61-62 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 344. See Subpart A, supra. Our conclusion in this regard has also been reached by the EEOC, which, pursuant to 42 U.S.C. § 12116 (1994), has issued regulations and Interpretive Guidance on the ADA. The Interpretive Guidance notes that where an associate or relative of the employee is disabled, but the employee himself is not disabled: an employer need not provide the applicant or employee without a disability with a reasonable accommodation because that duty only applies to qualified applicants or employees with disabilities. Thus, for example, an employee would not be entitled to a modified work schedule as an accommodation to enable the employee to care for a spouse with a disability. 29 C.F.R. Pt. 1630.8 app. at 349 (1996) (citing legislative history materials). [FN6] Thus, Wasatch *1085 was not required under the ADA to provide Den Hartog with any "reasonable accommodation" of Nathaniel 's disability.

Den Hartog v. Wasatch Academy 129 F.3d at 1083 –1085.

In this context, it is the nondisabled Julianna who requested an accommodation
or modification of allowing her grandfather to supervise her driving. However, under
existing law Defendants are not required to accommodate a nondisabled applicant. 21

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Thus, even assuming arguendo that the association discrimination provisions in Title I applied, under existing law, Defendants have no obligation to provide an accommodation to a nondisabled applicant. E. Plaintiff’s claim for damages under the Rehabilitation Act fails as a matter
of law. The Supreme Court has held that punitive damages may not be awarded in a private suit brought under Title II of the ADA or section 504 of the Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181, 189, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). Thus, Plaintiffs cannot obtain punitive or exemplary damages in this case. Accordingly, their claim appears to be for compensatory damages. However, a plaintiff cannot obtain compensatory damages from the state under the Rehabilitation Act without showing intentional discrimination. See Powers v. MJB Acquisition Corp., 184 F. 3d 1147, 1153 (10th Cir. 1999) (entitlement to compensatory damages under § 504 of the Rehabilitation Act requires proof of intentional discrimination). Plaintiffs make no allegation of intentional discrimination. Thus, their claim for damages fails as a matter of law. Moreover, the allegations of the Amended Complaint indicate that Julianna was not denied access to any service or program, much less denied because of her mother’s disability. Julianna is no different than any family who has parents that don’t drive. In such cases there was the option of gaining driving experience before her 16th birhtday with drivers instructor. Currently, there is the additional option of obtaining such experience in the presence of her licensed grandparent, provided her mother signs
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a limited power of attorney authorizing the grandparent to supervise the driving. The modifications made to the statute belie any claim of intentional discrimination.
F. Plaintiffs’ claims for injunctive and declaratory relief are moot. In order to have jurisdiction to adjudicate a dispute, a federal court must have
before it an actual case or controversy. Fischbach v. New Mexico Activities Association, 38 F.3d 1159 (10th Cir. 1994). A moot case must be dismissed because it does not pass this test. Id. When a case is moot, a live controversy no longer exists between the parties and the parties no longer have a stake in the outcome of the litigation. Adamson v. Bowen, 855 F.2d 668, 674-75 (10th Cir. 1988). At that point, the Constitution does not permit a federal court to consider what has become a mere academic exercise:
Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction. This requirement exists at all stages of federal judicial proceedings, and it is therefore not enough that the dispute was alive when the suit was filed; the parties must continue to have a personal stake in the outcome. Because mootness is a matter of jurisdiction, a court may raise the issue sua sponte. When a party seeks only equitable relief, as here, past exposure to alleged illegal conduct does not establish a present live controversy if unaccompanied by any continuing present effects. In these circumstances, the party must "demonstrate a good chance of being likewise injured in the future." McClendon v City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) [emphasis added, citations omitted]. A case must be dismissed on grounds of mootness unless the controversy exists at all stages of the proceedings, "not merely at the time the complaint
23

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is filed." Preiser v. Newkirk, 422 U.S. 395, 401, 95 S. Ct. 2330, 45 L. Ed. 2d 272 (1975).
For example, the Tenth Circuit has held that an ADA claim is mooted when policy changes are voluntarily implemented to alleviate alleged discrimination.
A request for prospective relief can be mooted by a defendant's voluntary compliance if the defendant meets the "formidable burden" of demonstrating that it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Laidlaw, 528 U.S. at 189-90, 120 S.Ct. 693. Such a burden will typically be met only by changes that are permanent in nature and that foreclose a reasonable chance of recurrence of the challenged conduct. See id. Wichita has met this burden with respect to the portion of appellants' injuries-in-fact which were based upon its driver-discretion policy. Tandy v. City of Wichita 380 F.3d 1277, 1291 (10th Cir.2004).
Assuming arguendo that the statute did discriminate because of Marcia Barber’s disability, the Defendants made reasonable modifications in order to accommodate Julianna by amending the statute at issue. Specifically, Plaintiffs requested a modification to the statute at issue “of permitting Julianna to drive with her grandfather, who is a licensed driver, before she turned 16.” (See Complaint at ¶35). Effective July 1, 2005, the statue at issue was amended to permit Julianna to drive with her grandfather. Specifically, the statute now permits an minor driver under 16, including Julianna, who has a minor’s instruction, to accumulate driving experience under the supervision of the “parent, stepparent, GRANDPARENT WITH POWER OF ATTORNEY, or guardian who cosigned the application for the minor’s instruction permit if such parent, stepparent, GRANDPARENT WITH POWER OF ATTORNEY, or
24

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guardian holds a valid driver’s license.”8 Thus, the requested modification or accommodation has been made.
Similarly, because the Defendants modified the above referenced statute, Plaintiffs’ claim for attorney fees also fails. Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, et. al., 532 U.S. 598 (U.S. 2001).
V. CONCLUSION For the reasons set forth above, Plaintiffs’ Amended Complaint should be dismissed.
JOHN W. SUTHERS Attorney General
/s/ James X. Quinn ELIZABETH H. McCANN* Deputy Attorney General JAMES X. QUINN* Assistant Attorney General Litigation Section Attorneys for Defendants 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-4307 *Counsel of Record
8 The requirement that the grandparent have a limited power of attorney from the parent authorizing the grandparent to supervise the driving is designed to reinforce the General Assembly’s intent in ensuring that a parent maintains some control over the driving instruction for his or her child.
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CERTIFICATE OF SERVICE This is to certify that I have duly served the within Memorandum Brief in Support of Defendants’ Motion to Dismiss upon all parties herein by depositing copies of same in the United States mail, postage prepaid, at Denver, Colorado, this 11th day of July, 2005 addressed as follows: Amy F. Robertson Timothy P. Fox Fox & Robertson 910 16th Street, Suite 610 Denver, Colorado 80202
/s/ James X. Quinn
26

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-00807-REB-CBS JULIANNA BARBER, by and through her next friend, MARCIA BARBER, et al.,
Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE, et al.,
Defendants.
MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Plaintiffs, by and through their attorneys, hereby submit their Memorandum in Opposition to Defendants’ Motion to Dismiss.
Plaintiffs bring this case to challenge Defendants’ refusal to permit Marcia Barber -- who is legally blind and as a result does not have a driver’s license -- from designating another responsible, licensed, adult driver to accompany her daughter, Julianna, while she practiced driving between the ages of 15 and 16. Defendants’ conduct discriminated against Plaintiff Marcia Barber, injured Plaintiff Julianna Barber, and will injure Plaintiff Madeline Barber, all in violation of title II of the Americans with Disabilities Act (“Title II”), 42 U.S.C. § 12131 et seq., and section 504 of the Rehabilitation Act of 1973 (“RA”). 29 U.S.C. § 794.
FACTS The Colorado General Assembly has declared that “[p]roviding additional behind-the-wheel training with a parent, guardian, or other responsible adult before

obtaining a minor driver’s license is the beginning of the young driver’s accumulation of experience.” C.R.S. § 42-2-105.5. To ensure that teenage drivers get “behind-thewheel” experience, the legislature provided that individuals 15 to 16 years old may obtain a “minor’s instruction permit,” which permits them to drive under the supervision of a licensed parent, stepparent, or guardian. Id. § 42-2-106(1)(b)(2004). The statute was amended after the filing of the Amended Complaint to permit a “grandparent with power of attorney” to accompany the minor driver as well. Id. § 42-2-106(1)(b)(2005).
Marcia Barber has retinitis pigmentosa and as a result is substantially limited in the major life activity of seeing. (Amended Complaint (“AC”) ¶ 6.) Because of her disability, Ms. Barber does not have a driver’s license. (Id. ¶ 31.) Ms. Barber has full custody of her daughters, Julianna and Madeline. (Id. ¶¶ 4, 5, 29, 30.)
Julianna Barber turned 15 on September 8, 2004, obtained a minor’s instruction permit on October 13, and completed a driver education course on October 23. (Id. ¶¶ 26, 27.) As of that time, Julianna could only drive accompanied by a licensed parent, stepparent or guardian. Because Marcia Barber is legally blind and thus is not a licensed driver, she requested that she be permitted to designate another licensed, adult driver -- in this case, Marcia’s father (Julianna’s grandfather) -- to accompany Julianna while she practiced driving. (AC ¶ 35.)
Ms. Barber repeatedly requested this modification, which Defendants repeatedly rejected. (Id. ¶¶ 35-43.) At one point, when Ms. Barber spoke with Colorado Attorney General John Suthers, he told her that he did not view the problem as an ADA issue, and suggested that Ms. Barber assign guardianship of her daughter to someone who
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could drive with her. (Id. ¶ 39.) Thus Ms. Barber faced a stark choice. She could give

up guardianship of her daughter, which would be a drastic loss of parental rights, and

an onerous and expensive legal undertaking, See C.R.S. § 15-14-201 (detailing the

procedural steps involved in appointing a guardian). Because she chose not to do this,

and because the state refused the reasonable modification she requested, she was

excluded from directing Julianna’s driving education between the ages of 15 and 16,

and Julianna missed out on a year of driving practice. Unless Defendants change their

policy, Marcia and Madeline Barber will face the same discrimination in 16 months,

when Madeline Barber turns 15. (Id. ¶¶ 5, 44.)

The Barbers are members of the Colorado Cross Disability Coalition (“CCDC”)

and the American Council of the Blind of Colorado (“ACBC”; collectively,

“Organizational Plaintiffs”). (AC ¶¶ 45, 52.) CCDC’s purpose is to work for systemic

change that promotes independence, self-reliance, and full inclusion for people with

disabilities in the entire community. (Id. ¶ 46.) ACBC’s purpose is to promote the

independence, equality and opportunities for blind and visually impaired individuals in

the state of Colorado. (Id. ¶ 53.) The elimination of discrimination, such as that of

Defendants, and the integration of persons with disabilities into the community are thus

at the core of the Organizational Plaintiffs’ purpose. (Id. ¶¶ 50, 56.)

ARGUMENT

I.

Standard of Review

Defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure. “A court may dismiss a complaint only if it is clear that no

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relief could be granted under any set of facts that could be proved consistent with the allegations.” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 507 (2002). II. Title II and the Rehabilitation Act.
Plaintiffs largely agree with Defendants’ recitation of the basic governing law. To show discrimination under Title II, Plaintiffs must allege, with respect to Marcia Barber: “(1) that [she] is a qualified individual with a disability; (2) that [she] was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason of [her] disability.” Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999). (See Mem. Br. in Support of Defs.’ Mot. to Dismiss (“MTD”) at 7.) Plaintiffs also agree with Defendants that the standards for interpreting Title II and the RA are the same. (See id. at 5-6 & n.3.)
Discrimination under Title II and the RA may take the form not only of disparate treatment, but also of disparate impact and a failure to make reasonable modifications. See Tyler v. City of Manhattan, 118 F.3d 1400, 1407 (10th Cir. 1997); see also infra at nn. 1 & 2 (citing applicable regulations). The obligation to make reasonable modifications extends to state statutes. See, e.g., Crowder v. Kitigawa, 81 F.3d 1480, 1485 (9th Cir. 1996) (holding that state had reasonable modification obligation with respect to state statute requiring quarantine of dogs).
Defendants erroneously contend that each person or entity bringing a claim under Title II or the RA must prove the three Gohier elements as to himself, herself or itself. As explained in greater detail below, Plaintiffs must make this showing as to
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Marcia Barber, and must show, with respect to her daughters Julianna and Madeline, that they have suffered or will suffer a cognizable injury caused by Defendants’ discrimination against their mother. See infra Section V. The Organizational Plaintiffs may bring claims based on representational standing if their members have standing, the interests at stake are germane to the organizations’ purposes, and the participation of individual members is not required. See infra Section IV.D. III. Plaintiffs were Denied Access To Services Or Programs Because of
Disability. Defendants incorrectly argue that Plaintiffs were not denied access to services and programs because of disability for two reasons: (1) the statute is facially neutral; and (2) any distinctions in the statute have a rational basis. (MTD at 8-9.) A. Defendants’ Conduct Violates Title II and the Rehabilitation Act
Despite the Fact That the Statute at Issue Is Facially Neutral. Defendants argue that “[t]here is no discrimination based on disability” because “[t]he statute of which Plaintiffs complain is facially neutral.” (MTD at 8.) This is not the correct standard under Title II or the RA, because it ignores two of the three ways of proving discrimination under those statutes: disparate impact; and failure to make reasonable modifications. As noted above, the Tenth Circuit has recognized that Title II addresses both disparate impact and the failure to make reasonable modifications. Tyler, 118 F.3d at 1407; see also Chaffin v. Kansas State Fair Board, 348 F.3d 850, 859-60 (10th Cir. 2003) (Title II and the RA were intended “to remedy a broad, comprehensive concept of discrimination against individuals with disabilities, including disparate impact
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discrimination.”). Accordingly, both Title II and the RA prohibit “criteria or methods of administration . . . that have the effect of subjecting qualified individuals with disabilities to discrimination. . .”1 and require that covered entities make reasonable modifications in policies, practices and procedures where necessary to prevent disability discrimination.2 Thus the fact that the statute at issue here may be facially neutral is irrelevant if either (1) it has the effect of subjecting people with disabilities to discrimination; or (2) Defendants refused to make a reasonable modification. Plaintiffs have adequately pleaded both theories.
1. Plaintiffs Have Pleaded Failure to Provide Reasonable Modification.
Under a “reasonable modification” theory, Plaintiffs must plead that a modification was requested and that the requested modification was reasonable. See Colorado Cross Disability Coalition v. Hermanson Family Ltd. Pship, 264 F.3d 999, 1004 (10th Cir. 2001). The Amended Complaint alleges both. Id. ¶¶ 1, 35, 37-42.
2. Plaintiffs have Pleaded Discriminatory Administration. Title II and the RA also both prohibit criteria and/or methods of administration that “have the effect of subjecting qualified individuals with disabilities to discrimination

1

28 C.F.R. § 35.130(b)(3)(i) & (ii) (ADA regulations); 49 C.F.R. 27.7

(b)(4)(i) & (ii) (Dep’t of Transportation RA regulations). See also 28 C.F.R.

§ 35.130(b)(8)(public entity may not impose eligibility criteria that screen out or tend to

screen out individuals with disabilities unless such criteria are necessary).

2

See 28 C.F.R. § 35.130(b)(7) (ADA regulations); Chaffin, 348 F.3d at 857

(Analyzing the RA and holding, “As the Supreme Court has explained, ‘to assure

meaningful access, reasonable accommodations in the [public entity’s] program or

benefit may have to be made.’” (quoting Alexander v. Choate, 469 U.S. 287, 301

(1985)).

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on the basis of disability” or that have the “effect of defeating or substantially impairing accomplishment of the objectives of the . . . program with respect to individuals with disabilities.”3 The Department of Justice explains that this provision “prohibits . . . nonessential policies and practices that are neutral on their face, but deny individuals with disabilities an effective opportunity to participate.” Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services, 28 C.F.R. pt. 35, app A at 541 (2004). Plaintiffs have properly pleaded this claim by alleging that the statute requires a license to accompany a minor driver, and that, “because of her visual disability, Marcia Barber does not have a driver’s license.” (AC ¶ 1, 24, 31.) This denied Marcia Barber an effective opportunity to participate in the minor driving instruction program by directing her daughter’s driving education. For the same reason, it had the effect of defeating the objectives of the program with respect to her. Colorado has deemed it important not only that minor drivers practice driving, but that parents control that process. Those objectives were completely defeated with respect to Marcia Barber in her attempts to control Julianna’s driving education.
Defendant will have the burden of proving that its policy of requiring a licensed parent, stepparent or guardian -- with no provision for a disabled parent to designate an alternative without giving up rights -- is necessary. See, e.g., Siddiqi v. Regents of the Univ. of Cal., No. C 99-0790 SI, 2000 WL 33190435, at *7 (N.D. Cal. Sep. 6, 2000) (analyzing section 35.130(b)(3) with section 35.130(b)(8) which prohibits criteria that screen out people with disabilities unless those criteria can be shown to be necessary).

3

28 C.F.R. § 35.130(b)(3)(i) & (ii). See also supra note 1.

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Thus, Plaintiffs are not required to plead that the policy is unnecessary.4 Defendant argues that any teenager who does not have a licensed parent,
stepparent or guardian would be affected by the statute. (MTD at 8-9.) While it is true that some nondisabled parents may not have driver’s licenses, and therefore be negatively impacted by the challenged policy, all individuals with Ms. Barber’s disability -- and persons with many other disabilities -- are prohibited by law from obtaining drivers’ licenses, so all such individuals will be denied an effective opportunity to participate because of their disabilities. See Crowder, 81 F.3d at 1484 (holding that Hawai’i’s animal quarantine law discriminated against blind people; though it applied equally to all persons arriving in Hawai’i with dogs, it had a disparate impact on blind people using guide dogs). Thus the statute has the effect of discriminating against -and defeating the objectives of the program with respect to -- people with disabilities.
B. The Fact That The Distinctions Made by The Statute May have a Rational Basis is Irrelevant to Plaintiffs’ Title II and RA Claims.
Defendants argue that “distinctions are valid as long as there is a rational basis for the distinction.” (MTD at 9.) This is incorrect as a matter of law under Title II and the RA. Neither statute excuses discriminatory distinctions that have a rational basis, and Defendants point to no statutory or regulatory language that suggests that they do. As the Tenth Circuit has made clear in the context of the Fair Housing Act, 42 U.S.C. § 3601 et seq., the use of the Equal Protection Clause’s rational basis test is not appropriate when the case “involves a federal statute and not the Fourteenth

4

Should the Court disagree and hold that Plaintiffs were required to plead

that the policy was unnecessary, Plaintiffs respectfully request leave to amend their

complaint to do so.

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Amendment.” Bangerter v. Orem City Corp., 46 F.3d 1491, 1503 (10th Cir. 1995). The passage on which Defendants rely in arguing to the contrary was in fact explaining the standard under the Equal Protection Clause, not Title II or the RA. See Thompson v. Colorado, 278 F.3d 1020, 1030-31 (10th Cir. 2001). It is thus not relevant to the present case. The plain language of Title II and the RA make Defendants’ conduct illegal regardless of any rational basis.
C. Defendants’ Cases are Not to the Contrary. Defendants quote from a series of cases stating that the purpose of Title II is to prevent disability discrimination rather than some other type of discrimination. If this is part of Defendants’ argument concerning association discrimination, it is addressed in Section V below. If it is part of their attempt to limit coverage to facially discriminatory statutes, it was addressed in Section III.A above. These cases are not, in any event, apposite. In two of the cases, the decision turned on the fact that the person alleging discrimination was not disabled. Buckley v. Consl. Edison Co. of N.Y., Inc., 155 F.3d 150, 156 (2nd Cir. 1998); Welsh v. City of Tulsa, Okl., 977 F.2d 1415, 1419 (10th Cir. 1992). In the present case, Plaintiffs have properly alleged that Marcia Barber is disabled, that Defendants discriminated against her, and that other Plaintiffs were injured by that discrimination. In two other cases cited by Defendants, the court held that the duty to make reasonable accommodations only extended to accommodating disability, not other factors, for example, poverty or age. Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (no duty to accommodate poverty); Sandison
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v. Michigan High Sch. Athletic Ass’n, 64 F.3d 1026, 1036-37 (6th Cir. 1995) (no duty to accommodate age). In the present case, the only reason Marcia Barber does not have a driver’s license is that she is legally blind (AC ¶¶ 1, 31), so the requested modification is causally related to her disability. See McGary v. City of Portland, 386 F.3d 1259, 1267-68 (9th Cir. 2004) (distinguishing Weinreich and holding that where request for modification was result of disability, refusal to grant request was discrimination “by reason of” disability); Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181 F.3d 840, 849 (7th Cir. 1999) (rejecting Sandison and holding that it was sufficient to establish causal relationship between disability and exclusion, that is, “but for” disability, plaintiff would not have been excluded). In addition, unlike the plaintiffs in Weinreich, 64 F.3d at 1037, and Sandison, 114 F.3d at 797, Plaintiffs here also plead a disparate impact theory. Finally, the quote from Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1259 (10th Cir. 2001) related to discriminatory discharge, separate from the court’s discussion addressing failure to accommodate. IV. Plaintiffs Have Stated a Valid Claim under Title II and Rehabilitation Act.
A. Marcia Barber is a Qualified Individual with a Disability, Was Excluded from Defendants’ Programs on the Basis of Disability and Has Suffered a Cognizable Injury. 1. Marcia Barber is a Qualified Individual with A Disability.
Defendants argue that Marcia Barber is not qualified to participate in the program at issue here because she does not have a driver’s license, which is required by the statute if she is to accompany her daughter while she drives with a minor instruction permit. (See MTD at 10.) This ignores the statutory definition of “qualified individual
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with a disability”: “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, . . . meets the essential eligibility requirements for” the program at issue. 42 U.S.C. § 12131(2) (emphasis added).
The program at issue in this case is Colorado’s minor driver’s licensing program. When Julianna received her minor’s instruction permit, this program required the participation of both the minor driver and a parent, stepparent, or guardian with a driver’s license, thus making not only the minor but her parent, stepparent or guardian a part of the program. See C.R.S. § 42-2-106(1)(b) (2004). Defendants acknowledge “the General Assembly’s intent in ensuring that a parent maintains some control over the driving instruction for his or her child.” (MTD at 25 n.8.) Plaintiffs have properly pleaded that Marcia Barber, as the parent of a 15-year-old, met the essential eligibility requirements for participation in this program with the reasonable modification that she be permitted to designate another licensed driver to assist in supervising Julianna’s driving instruction. She is thus a “qualified individual with a disability.”
Defendants argue that Ms. Barber is not “qualified” because she does not have a license. This is circular. It is precisely this qualification that Plaintiffs challenge here: the requirement that a licensed parent be present with the minor driver, while denying the reasonable modification of permitting Ms. Barber -- who is unlicensed because of her visual disability -- to designate another licensed driver to assist in supervising Julianna’s driving education. See Clark v. Va. Bd. of Bar Exam’rs, 880 F. Supp. 430, 441 (E.D. Va. 1995) (noting, in addressing mental health question on bar application, that “[w]hile Defendant argues that [the plaintiff] is not an ‘otherwise qualified individual’
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because she failed to answer [the mental health question], this argument begs the question of whether [the question] must be answered at all.”). As the Supreme Court has explained, in analyzing disability discrimination under the RA, “[t]he benefit itself, of course, cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled; to assure meaningful access, reasonable accommodations in the . . . program or benefit may have to be made.” Alexander v. Choate, 469 U.S. 287, 301 (1985). Defining the benefit at issue here to require precisely the issue being challenged effectively denies meaningful access to otherwise qualified individuals, that is, parents with disabilities who wish to control their teenagers’ driving instruction without giving up parental rights. Thus, “qualified” cannot be defined to require a parent to have a driver’s license where a reasonable modification would make it unnecessary.
2. Marcia Barber Was Denied Access to Defendants’ Program on the Basis of Disability.
Defendants incorrectly assert that Marcia Barber “has not been, and does not allege that she was denied access to a service or program because of her disability.” (See MTD at 10.) To the contrary, Plaintiffs have properly alleged that Defendants denied Marcia Barber access to and participation in Colorado’s minor driving licensing program. The issuing of licenses by the state is a service, program or activity under Title II. Hason v. Medical Bd. of Calif., 279 F.3d 1167, 1172-73 (9th Cir. 2002). It is clear from the face and purpose of the statute and from Defendants’ own brief5 that parental participation is an essential facet of that program. Thus although it is Julianna

5

See MTD at 25 n. 8.

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who was denied an opportunity to practice driving, Ms. Barber was denied the opportunity to control her daughter’s driving education by ensuring that she received that practice time and by being permitted to designate the person to accompany her, without giving up parental rights.
3. Marcia Barber Has Suffered A Cognizable Injury. Defendants argue that Marcia Barber was not injured. (MTD at 10.) To the contrary, Ms. Barber was injured when she was denied the opportunity to control her daughter’s driving education without giving up guardianship. The Supreme Court has held that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). These rights include the right of parents “to direct the upbringing and education of children under their control.” Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-535 (1925). Excluding Ms. Barber from control over her daughter’s driving education or forcing her to assign guardianship of her daughter is a deprivation of this fundamental liberty. It is an injury distinct to Ms. Barber, completely separate from the injury Julianna suffered through the deprivation of practice driving time. This injury distinguishes this case from Simenson v. Hoffman, No. 95 C 1401, 1995 WL 631804 (N.D.Ill. Oct. 24, 1995), on which Defendants rely. In Simenson, a child was denied medical treatment based on his disability. Both the child and his parents sued. The court held that the parents did not state a claim for associational discrimination because they suffered no separate injury when the defendant refused to treat their son. Id. at *6. Ms. Barber, unlike the Simensons, suffered an injury to her
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own interest: the liberty interest in the education and control of her daughter. B. Julianna Barber Has Properly Alleged A Claim Despite the Fact that She is Not Disabled. Defendants argue that Julianna Barber has not stated a claim because she is not
a “qualified individual with a disability.” (MTD at 11.) As demonstrated in Section V below, a plaintiff does not need to be a person with a disability -- or even a person -- to bring a claim under Title II or the RA if he, she or it was injured by discrimination against a person with a disability under one of those statutes. Julianna has properly alleged a claim under these statutes because she was injured when she was denied practice driving time between the ages of 15 and 16, and because that injury was caused by Defendants’ discrimination against her mother: their refusal to make the requested reasonable modification of permitting her mother to designate an alternative licensed driver to accompany when Julianna practiced driving.
C. Madeline Barber’s Claim is Ripe for Decision. Madeline Barber stated a claim under Title II and the RA because she will be injured by Defendants’ discrimination against her mother. See infra Section V. Madeline is currently 13 years old and will be eligible for her minor instruction permit on January 14, 2007, the day she turns 15. Defendants argue that she is not yet qualified for the program at issue here. (See MTD at 11-12.) This argument is thus one of ripeness. Madeline’s claim satisfies the Tenth Circuit’s two-factor test for ripeness: the issue is fit for resolution; and there would be hardship to the Barbers in withholding judicial consideration. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995).
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A case is fit for resolution if it does not involve “‘uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Id. at 1499. Madeline’s claim does not depend on any uncertain or contingent events: she will turn 15 on January 14, 2007; she will then apply for a minor instruction permit; and the statute will prohibit her mother from designating anyone other than her grandfather to drive with her, and will require her mother to give up certain rights, through a power of attorney, even to do that. The fact that this case turns strictly upon a legal issue -- are the Defendants required to make the requested reasonable modification? -- supports its fitness for resolution. See New Mexicans, 64 F.3d at 1499.
There would be substantial hardship to Madeline and Marcia Barber were judicial consideration of Madeline’s claim withheld. The question now before this Court is only relevant for one year of any teenager’s life: from age 15 to 16. During that year, she may only drive when one of the individuals listed in section 42-2-106(1)(b) is present in the car; after the age of 16, she may drive with any licensed driver over the age of 21. C.R.S. § 42-2-106(1)(a). In order for Madeline to profit from the entire year of driving practice, the issues here must be resolved before she turns 15. If she were forced to wait until she turns 15 -- 16 months from now -- to file suit, she would spend valuable driving practice time in litigation. Madeline has thus satisfied the second factor as well.
The Tenth Circuit has held that a challenge to mental health questions on the application for admission to the state bar was ripe even though the plaintiff had not yet taken, much less passed, the bar exam: “were we to delay review until the Students pass the bar exam and challenge the questions before the Board and Colorado
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Supreme Court, we would in effect require the Students ‘to jump through a series of hoops, the last of which [they are] certain to find obstructed by a brick wall.’” Roe #2 v. Ogden, 253 F.3d 1225, 1231 (10th Cir. 2001). Similarly, were this Court to delay review of Madeline’s claim, it would require her to jump though hoops, hit a brick wall, and use much of her practice driving time in court. Other courts have held claims to be ripe where an age-related trigger is much farther in the future than 16 months. See, e.g., Riva v. Mass., 61 F.3d 1003, 1009-1011 (1st Cir. 1995) (holding the that claim addressing a benefit cut that would not take effect for seven years was ripe); Breck v. Michigan, 47 F. Supp. 2d 880, 881, 884 (E.D. Mich. 1999) (holding that claim addressing age limit on judges running for reelection was ripe where one plaintiff would not stand for reelection for three years), aff’d 203 F.3d 392 (6th Cir. 2000).
D. The Organizational Plaintiffs Have Standing. An organization may have standing to sue on its own behalf, when the organization has suffered injury;6 and it may have standing to sue on behalf of its members. The Organizational Plaintiffs bring claims only on the latter basis. As such, all they are required to show is that their “members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization[s’] purpose[s], and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000); Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977).

6

See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

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The Amended Complaint alleges all of these elements. The Barbers are members of both organizations. (AC ¶¶ 45 & 52.) Each organization has alleged the prerequisites for standing: injury; caused by Defendants’ conduct; that will be redressed by the requested relief.7 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The Amended Complaint further alleges that both organizations have other members “likely to encounter the same discrimination encountered by the Barbers” who “have been injured and will continue to be injured by” that discrimination, and that the elimination of disability discrimination is at the core of organizations’ purposes. (AC ¶¶ 46-56.) Because the Organizational Plaintiffs only seek injunctive relief, the participation of individual members is unnecessary. See Hunt, 432 U.S.at 343 (holding that associations have standing to represent their members where “‘the association seeks a declaration, injunction, or some other form of prospective relief’”). The Organizational Plaintiffs thus have standing under the Hunt standard.
Defendants argue that the Organizational Plaintiffs suffered no injury. (See MTD at 12-14.) In so doing, however, they are applying the wrong standard. Injury to the organization is required for it to sue in its own right. See Havens, 455 U.S. at 379 n. 19. It is not, however, an element of representational standing under Hunt. See id. 432 U.S. at 342 (“an association may have standing to assert the claims of its members even where it has suffered no injury from the challenged activity”). Defendants have provided no evidence or argument to suggest that the Organizational Plaintiffs fail to meet the standard of Hunt and Friends of the Earth.

7

AC ¶¶ 34, 40, 43, 61, 65; id. at 10.

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V. Plaintiffs Have Stated A Proper Claim for Association Discrimination. A. Julianna and Madeline Barber Have Stated Claims Because They Have Been or Will Be Injured by Discrimination Against Their Mother. Any person injured by an act of discrimination that is illegal under Title II or the
RA may sue to challenge that discrimination. The Tenth Circuit recently held that standing under Title II and the RA reaches “to the full limits of Article III.” Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004). Because Julianna Barber has suffered -- and Madeline will suffer -- injury caused by Defendants’ discrimination against their mother, which injuries will be redressed by the relief they request, they have Article III standing. See Lujan, 504 U.S. at 560-61. Because they allege that their injuries were (or will be) caused by discrimination against a person with a disability, they have properly pleaded claims under Title II and the RA.
The effect of Tandy’s holding that standing under Title II and the RA extends to the full limits of Article III is that a nondisabled person or even a corporate entity has standing to pursue a claim under those statutes if he, she, or it was injured by discrimination against a person with a disability. Where Congress intended standing to “extend to the full limits of Art. III, the normal prudential rules do not apply; as long as the plaintiff suffers actual injury as a result of the defendant’s conduct, he is permitted to prove that the rights of another were infringed.” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n.9 (1979). Under this standard, the Supreme Court has recognized the standing of individuals injured by discrimination against others. For example, in Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972), the Court recognized that white tenants had standing under the Fair Housing Act based on the
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fact that they lived in a building in which the owner had discriminated against AfricanAmericans. The white tenants were not the targets of discrimination but had been injured by the discrimination because they had missed out on the advantages of an integrated community. Id. at 208-12; see also Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 406 (3d Cir. 2005) (“the enforcement provisions of [Title II] and [the RA] do not limit relief to ‘qualified individuals with disabilities’”). Thus Julianna and Madeline Barber have properly alleged claims under Title II and the RA because they were (or, in Madeline’s case, will be) injured by Defendants’ discrimination against their mother, Marcia Barber. (AC ¶¶ 34, 40, 43.)
Although it is not necessary in light of the Tenth Circuit’s holding in Tandy -which in and of itself confers standing on Julianna and Madeline Barber -- Title II regulations also explicitly recognize that a nondisabled person or an entity may have a claim for discrimination based on “the known disability of an individual with whom the individual or entity is known to have a relationship or association.” 28 C.F.R. § 35.130(g). The Tenth Circuit has not yet directly addressed this provision; however, three other circuits have held that it grants a cause of action to persons or entities who are injured by discrimination against a person with a disability with whom the plaintiff has a relationship or association. See Addiction Specialists, 411 F.3d at 406; MX Group, Inc. v. City of Covington, 293 F.3d 326, 334-35 (6th Cir. 2002); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997). Under § 35.130(g), Julianna and Madeline Barber have standing because they were (or, in Madeline’s case, will be) excluded from the minor instruction permit program based on
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the known disability of their mother, that is, an individual with whom they were known to have a relationship or association. (See AC ¶¶ 7, 35-43.)
Defendants assert that “[t]here is no association provision in Title II of the ADA” (MTD at 15), apparently referring to the text of the statute itself, rather than the regulations. That assertion reflects an ignorance of the structure of Title II, which contains a single operative anti-discrimination provision, 42 U.S.C. § 12132, while leaving a detailed description of prohibited conducted to the Department of Justice regulations. Id. § 12134(a); see Chaffin, 348 F.3d at 858 (“‘The language of Title II does not elaborate on the obligation of a public entity to an individual with a disability in the provision of “services, programs, or activities.” We must rely for specifics on the regulations promulgated under Title II.’”); Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9th Cir. 1996) (Title II “regulations must be given ‘legislative and hence controlling weight unless they are arbitrary, capricious, or clearly contrary to the statute.’”).
Defendants cite two cases to argue that there is no claim for association discrimination under Title II. Neither provides a basis to reject the Supreme Court and Tenth Circuit precedent and regulatory language discussed above. The plaintiff in McGuinness v. Univ. of New Mexico School of Medicine, 170 F.3d 974 (10th Cir. 1998), brought his claim under the Title I associational provision. Because Title I addresses discrimination in employment, see, e.g., 42 U.S.C. § 12112, and because the plaintiff was not an employee of the defendant, the Tenth Circuit properly held that he did not have a claim under that provision. Id. at 979. The decision did not address association discrimination under Title II.
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In Morgan v. City of Albuquerque, 25 F.3d 918, 920 (10th Cir. 1994), the court dismissed the plaintiff’s ADA association discrimination claim in a single paragraph, without directly addressing, much less analyzing, either Title II or section 35.130(g). It is highly unlikely that the Tenth Circuit would uphold this conclusion after a more thorough analysis, especially in light of its broad reading of Title II standing, see Tandy, 380 F.3d at 1287, its recognition of the role of Title II regulations, Chaffin, 348 F.3d at 858, and the fact that three circuits have recognized and enforced section 35.130(g) while no circuit has explicitly rejected it.
B. Associational Discrimination Can Be Based on a Failure to Provide Reasonable Modifications.
Defendants argue that “an association discrimination claim cannot be based on a failure to accommodate the nondisabled.” (See MTD at 20). This is incorrect.
As an initial matter, Plaintiffs are not asking that “the nondisabled” be accommodated. Marcia Barber -- whom Plaintiffs have properly alleged is disabled (AC ¶ 6) -- requested the reasonable modification of being permitted to designate another licensed driver to accompany her daughter while she practiced driving. This distinguishes the present case from Den Hartog v. Wasatch Academy -- from which Defendants quote at length -- because in the latter case, it was a nondisabled employee who requested an accommodation under Title I of the ADA. Id., 129 F.3d 1076, 1083-85 (10th Cir. 1997). Defendants apparently believe that because the modification Ms. Barber requested to address her own disability would also have the effect of reducing the injury to Julianna and Madeline (neither of whom is disabled), it is an “accommodation of the nondisabled.” This is not the case: the modification was
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necessitated by and requested by Marcia Barber, a person with a disability, in order that she could control her daughters’ driving education without relinquishing guardianship.
In addition, Defendants’ argument is based entirely on a single case interpreting Title I of the ADA, the provision governing discrimination in employment. Den Hartog, 129 F.3d at 1083-85. This case is thus inapposite, and important differences between Title I’s reasonable accommodation provision and Title II’s reasonable modification provision demonstrate that the modification requested here was required.
Title I requires “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee . . .” 42 U.S.C. § 12112(b)(5)(A). It is, on its face, limited to reasonable accommodations to a disabled applicant or employee. In contrast, Title II requires “reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.” 28 C.F.R. § 35.130(b)(7). The latter does not limit accommodations to those for the disability of a specific person, but rather simply requires that the modification be necessary to avoid discrimination. In this case, as noted above, it was in fact a disabled person -- Marcia Barber -- who requested the modification. More importantly, that modification was necessary to avoid excluding Ms. Barber from her daughter’s driving education, that is to avoid discrimination on the basis of disability. However characterized, the modification requested was required by Title II and the RA. VI. Plaintiffs’ Have Alleged Intent Sufficient to Recover Compensatory
Damages Under the Rehabilitation Act. Plaintiffs Marcia and Julianna Barber seek compensatory damages under the
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RA. The parties agree that, in order to recover such damages, Plaintiffs must prove intent. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1152 (10th Cir. 1999), cited in MTD at 22. Intent includes “deliberate indifference to the strong likelihood that pursuit of [Defendants’] questioned policies will likely result in a violation of federally protected rights.” Id. at 1153. Plaintiffs’ Amended Complaint satisfies this standard.
In the context of a request for reasonable modification, it is sufficient to allege that the plaintiff “alerted the public entity to his need for accommodation,” and that the defendant’s failure to act was “more than negligent, and involve[d] an element of deliberateness.” Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). Plaintiff has properly pleaded that she repeatedly alerted Defendants to the need for the modification -- including asserting that her rights were being violated -- and that Defendants’ refusal to provide the modification was deliberate, as evidenced by their letters and phone calls to her refusing her request. (AC ¶¶ 35-43.); see also Love v. Westville Correctional Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (failure to provide accommodations constitutes intentional discrimination). Julianna and Marcia Barber have sufficiently alleged intent -- based on the deliberate indifference standard -- to state a claim for compensatory damages under the RA. VII. Plaintiffs’ Claim for Injunctive and Declaratory Relief are Not Moot.
Defendants argue that Plaintiffs’ claims for injunctive relief are moot based on a change in the law that occurred after Plaintiffs filed their Amended Complaint. The statute as it now reads permits a driver between the ages of 15 and 16 to be accompanied by a parent, stepparent, grandparent with power of attorney, or guardian.
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C.R.S. § 42-2-106(1)(b). Defendants essentially argue that the fact that the statute now mentions grandparents solves the problem, ignoring both the continuing requirement of assignment of rights -- through a power of attorney -- and the fact that not all parents with disabilities will themselves have a nondisabled parent with a driver’s license who lives near enough to regularly accompany the child as she learns to drive.
Parents with disabilities should not be required to give up parental rights and take onerous additional steps in order to exercise their rights under Title II and the RA. Cf. Chaffin, 348 F.3d at 857 (holding that fact that disabled state fair goers could get into the fair was not sufficient because Title II requires “meaningful access”); Crowder, 81 F.3d at 1484 (holding that meaningful access not provided where burden on people with disabilities is greater than on the general public). In this respect, requiring a power of attorney is little better than requiring assignment of guardianship: both require the disabled parent to retain an attorney and prepare legal documentation; and both result in the assignment of at least part of the parents’ rights. See, C.R.S. §§ 15-14-601 through 611 (detailing the legal requirements and effects of powers of attorney). Parents with disabilities should not be required to retain an attorney and give up rights in order to control their teenagers’ driving education.
The statute as currently worded would also not moot the claims of the Organizational Plaintiffs, whose members may include parents with disabilities whose own parents (in other words, grandparents of prospective drivers) are either not alive, not resident in Colorado, or not licensed. See AC ¶¶ 48, 54.8 Those individuals --

8

These paragraphs allege that the Organizational Plaintiffs’ “members

(continued...)

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without the ability to appoint an alternative, licensed, adult driver to accompany their children -- will face precisely the discrimination Ms. Barber encountered.
Ultimately, Defendant makes clear that this argument applies only to claims for “‘prospective relief.’” (MTD at 24 (quoting Tandy, 380 F.3d at 1291).) As such, even if the Court should agree that the change in the statutory language moots the claims for prospective relief, the claims of Marcia and Julianna Barber for compensatory damages under the RA are not affected by this argument.
8(...continued) include parents who are blind and their children, who are likely to encounter the same discrimination encountered by the Barbers.” Because the statute had not yet been amended when the Amended Complaint was filed, it does not allege that some of these members may not have grandparents available to accompany their children as they learn to drive. In addition, Marcia Barber’s father is 80 years old; it is not clear that it will be appropriate for Marcia to designate him to accompany Madeline when that time comes. Should the Court determine that such these allegations are required, Plaintiffs respectfully request leave to amend.
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CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court deny Defendants’ Motion to Dismiss.
Respectfully submitted,
s/ Amy Farr Robertson Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700 Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775 Attorneys for Plaintiff
Dated: August 31, 2005
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Certificate of Service
I hereby certify that on August 31, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address:
Elizabeth H. McCann beth.mccann@state.co.us
s/ Amy Farr Robertson Amy F. Robertson Attorney for Plaintiffs Fox & Robertson, PC 910 16th Street Suite 610 Denver, CO 80202 303.595.9700 (voice) 303.595.9705 (fax) arob@foxrob.com

 </s> Case 1:05-cv-00807-REB-CBS Document 24 Filed 09/22/05 USDC Colorado Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-807-RB-CBS JULIANNA BARBER, et al. by and through her next friend, Marcia Barber; et al., Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE, et al., Defendants.
DEFENDANTS’ REPLY TO MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
The Defendants, through the Colorado Attorney General, respectfully submit the following Reply to Plaintiff’s Memorandum in Opposition to Defendants’ Motion to Dismiss filed August 31, 2005.
PRELIMINARY STATEMENT Plaintiffs brought this action seeking damages, declaratory, and injunctive relief against the Defendants based on § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”), and Title II of the Americans with Disabilities Act, 42 U.S.C. § § 12131 – 34 (the “ADA”). Plaintiffs contend that Defendants violated the above statutes because a state statute in effect prior to July 1, 2005 failed to allow driving supervision by a person other than a parent, stepparent or guardian who is a licensed driver when a 15 year old obtains an instructional permit. Because Marcia Barber (mother) is not licensed to operate a motor vehicle, she was not qualified pursuant to statute to supervise her daughter while her daughter accumulated driving experience until she turned sixteen. Plaintiffs maintain that Defendants failed to make reasonable modifications by allowing Julianna’s (daughter) grandfather to supervise her driving.

Case 1:05-cv-00807-REB-CBS Document 24 Filed 09/22/05 USDC Colorado Page 2 of 11
ARGUMENT I Colo. Rev. Stat. § 42-2-106 is not discriminatory.
A facially neutral governmental restriction does not deny "meaningful access" to the disabled simply because disabled persons are more likely to be affected by it. Patton v. TIC United Corp. 77 F.3d 1235, 1246 (10th Cir. 1996) citing Alexander v. Choate, 469 U.S. 287, 303-04 (1985) (holding that a ceiling on the number of inpatient hospital days paid for by Tennessee's Medicaid program did not deny the disabled meaningful access to Medicaid services).
Plaintiffs’ argue that the fact that the statute is facially neutral does not matter if it subjects people with disabilities to discrimination (disparate impact) or if the state has not made a reasonable modification. Based on the claims alleged, there is no discrimination here based upon disability. The statute does not subject disabled people to disparate treatment or impact. Any minor child that is less than 16 years of age and does not have a parent, stepparent, or guardian that is a licensed driver is affected by the statute. The statute applies whether the parent, stepparent or guardian is unlicensed due to revocation of a license, due to an inability to obtain a license for any reason, or simply because the parent, step parent, or guardian chooses not to drive. In such instances the minor driver may obtain driving experience before his or her 16th birthday with an approved driver education instructor who holds a valid driver’s license, through assignment by the parent of a limited guardianship for purposes of driver’s education only, or through a grandparent (after July 1, 2005). After the minor turns 16, he or she can drive with his or her instruction permit with any licensed driver over the age of 21.
2

Case 1:05-cv-00807-REB-CBS Document 24 Filed 09/22/05 USDC Colorado Page 3 of 11
There was no need for the state to make a modification under the original statute because there was no disparate impact. Julianna Barber could drive with a person designated by her mother through a limited guardianship. II. Plaintiffs fail to state a claim.
A. Marcia Barber Plaintiffs admit that they are required to prove the elements of an ADA claim with
respect to Marcia Barber only. Assuming arguendo that this is true, Plaintiffs have failed to even meet this burden. The elements include:
(1) that he [or she] is a qualified individual with a disability; (2) that he [or she] was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. While Marcia Barber is disabled, she is not a qualified to supervise her daughter’s driving because she is not a licensed driver. Because Marcia is not a licensed driver, and does not meet the eligibility requirements to become a licensed driver, or to supervise a minor driver, she is not a qualified individual to supervise her daughters’ driving. Therefore, she fails to meet the first element of a claim. In their Memorandum in Opposition to the Motion to Dismiss, Plaintiffs maintain that Marcia was denied access to the program that allowed her to supervise her daughter’s driving because she was not allowed to designate her father as a supervisor. However, this claim lacks any merit whatsoever. Assuming that this, in fact, constitutes a “program”, Plaintiff’s claim still fails. Marcia Barber always had the authority to designate any licensed driver over
3

Case 1:05-cv-00807-REB-CBS Document 24 Filed 09/22/05 USDC Colorado Page 4 of 11
21 of her choosing to supervise her daughter’s driving. Under the former statute, she could assign limited guardianship rights exclusively for purposes of the supervision.
However, Marcia alleges that this would “be a drastic loss of parental rights.” Nothing could be further from the truth. Indeed, she could have executed a limited guardianship empowering and limiting another individual to supervise the driving. Moreover, she could have made the appointment without court intervention. See Colo. Rev. Stat. § 15-14-201 (“a person becomes a guardian of a minor by appointment by a parent or guardian by will or written instrument or upon appointment by the court….) See Colo. Rev. Stat. § 15-14-102 (4) (“Guardian” means an individual at least twenty-one years of age, resident or non-resident, who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or by court. The term includes a limited, emergency, and substitute guardian but not a guardian ad litem.”)(Similar to guardianships created by parents when their children go on a school trip.) Thus, the Plaintiffs had, but never exercised, the option of appointing Juliana’s grandfather as a limited guardian solely for the purpose of supervising Juliana’s driving under the previous statute.
Plaintiffs’ assertion that the limited guardianship process is too onerous a process lacks merit. Pursuant to statute, “[a] person becomes a guardian of a minor by appointment by a parent … by written instrument….” Colo. Rev. Stat. § 15-14-201. The additional requirement of a written instrument is not onerous. See e.g. Theriault v. Flynn 162 F.3d 46 (1st Cir. 1998) (State did not discriminate against motorist with cerebral palsy, in violation of Americans with Disabilities Act, when motorist was required to take road test, not ordinarily required, before driver's license allowing driving with hand controls was renewed); Bailey v. Anderson 79 F.Supp.2d 1254 (D.Kan. 1999) (State did not discriminate against motorist with
4

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vision impairment in violation of ADA by requiring her to submit report from driving instructor

regarding her driving ability as condition for instruction permit); Briggs v. Walker 88

F.Supp.2d 1196 (D.Kan. 2000) (State director of vehicles did not discriminate against

wheelchair restricted applicant for instruction permit to operate vehicle in violation of the ADA,

by requiring that applicant submit medical certification as to her ability to operate vehicle

safely before permit would be granted). Thus the requirement that Plaintiffs provide a limited

guardianship was not onerous and not a violation of the ADA.

Even assuming arguendo, that Marcia was denied the ability to choose a supervisor for

her daughter’s driving, it was not because she is disabled. Plaintiffs fail to recognize the

distinction between a disability and the result of the disability. Plaintiff’s maintain in their

response that “Plaintiff’s bring this case to challenge Defendants’ refusal to permit Marcia

Barber – who is legally blind and as a result does not have a driver’s license – from

designating another responsible , licensed, adult driver to accompany her daughter, Juliana,

while she practiced driving between the ages of 15 and 16.” (Plaintiff’s Memorandum in

Opposition at p. 1). Marcia was not permitted to supervise the driving because she does not

have a drivers license, not because she is blind. Plaintiffs would have this Court believe that

the disability is not retinitis pigmentosa, but rather an inability to drive. Such arguments have been rejected by the courts. See Flight v. Gloeckler 68 F.3d 61, 64 (2nd Cir. 1995).

Flight contends that his disability is not multiple sclerosis, but

rather an inability to drive, but this argument is unpersuasive. A

disability is a "physical or mental impairment," 29 U.S.C. §

706(8)(A), (B), i.e., "any physiological disorder or condition ...

affecting" the neurological system. 34 C.F.R. § 104.3(j)(2)(i)(A)

(emphasis added). Clearly, an inability to drive is not a

physiological condition, but rather a result of a physiological

condition, viz., Flight's neurological disorder.

.

.

.

.

.

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The district court correctly noted that this provision is inapplicable because the distinction in the present case is not based upon Flight's disability, multiple sclerosis, but rather upon his inability to drive.
Both the ADA and the Rehabilitation Act require a claimant to show that the defendant’s allegedly improper conduct was done because of claimant’s disability. See 29 U.S.C. § 794 (“solely by reason of her or his disability”); 42 U.S.C. § 12132 (“by reason of such disability”). “The Act prohibits programs receiving federal financial assistance from discriminating against handicapped persons solely because of that handicap. Welsh v. City of Tulsa, Okl. 977 F.2d 1415, 1417 (10th Cir. 1992). “The duty to provide ‘reasonable accommodations’ under the ADA and the Rehabilitation Act arises only when a policy discriminates on the basis of disability.” Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (emphasis in original). “A plaintiff proceeding under Title II of the ADA must, similar to a Section 504 plaintiff, prove that the exclusion from participation in the program was ‘solely by reason of disability.” Weinreich v. Lost Angeles County Metro. Transp. Auth., 114 F.3d at 978; Sandison v. Michigan High Sch. Athletic Ass’n, 64 F.3d 1026, 1036-37 (6th Cir. 1995).
Marcia Barber was not discriminated against because she is blind. She could not participate in supervising her daughter’s driving because she does not have a license and no other parent, stepparent or guardian had a license. She is in the same position as any parent who does not have a license and others to supervise.
B. Plaintiffs fail to plead a claim with respect to Julianna Barber. There is no allegation in the Amended Complaint that Juliana Barber is disabled. “[A]s a threshhold matter, any plaintiff asserting a claim under the ADA must establish that he or she is a ‘qualified individual with a disability.’” Lanman v. Johnson County, __ F.3d __, 2004
6

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WL 3017258, at *3 (10th Cir. 2004) (quoting 42 USC § 12112(a)). An ADA plaintiff bears the

burden of proving that he is a “qualified individual with a disability.” Cleveland v. Policy Mgmt.

Sys. Corp., 526 U.S. 795, 806 (1999). Accordingly, she fails to meet the first element of a

disability claim. Additionally, she has not been denied access to a service or program. She has obtained her instruction permit. With such permit, before her 16th birthday, because

neither of her parents were licensed drivers, she could gain driving experience in the

presence of an authorized driving instructor or with a limited guardian. Under the current

statute, she could gain driving experience in the presence of her grandfather. Thus she was

not excluded from participation in or denied the benefits of Colorado’s driver’s program and

fails to meet any element of an ADA or Rehabilitation Act claim. She is in the same situation

as any other 15 year old who does not have a parent, stepparent, or guardian with a driver’s

license.

Plaintiffs argue that Julianna’s claim survives because of her association with her disabled mother. In Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004), relied on by the

Plaintiffs, the Tenth Circuit noted that the parties stipulated that all plaintiffs were qualified

individuals with disabilities and held they had standing because they had each suffered an

injury in fact. In order to sue under an association theory, the disabled person must have

been discriminated against which is not the case here.

C.

Plaintiffs fail to plead a claim with respect to Madeline Barber.

Madeline Barber also fails to meet a single element of an ADA claim. Even if she were

disabled, she is not otherwise qualified to receive an instruction permit or a driver’s license

because she is only 13 years old. To get relief under the ADA or the Rehabilitation Act, a

claimant must be “disabled” (or “handicapped”) and otherwise qualified. School Bd. of

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Case 1:05-cv-00807-REB-CBS Document 24 Filed 09/22/05 USDC Colorado Page 8 of 11

Nassau County v. Arline, 480 U.S. 273, 285 (1987). “An otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.” Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979); Arline, 480 U.S. at 287 n.17; Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981). Plaintiffs’ contention that she will likely be affected in the future is speculative at best given the amendments to the statutes permitting grandparent supervision. To seek prospective relief under Article III, the plaintiff must be suffering a continuing injury or be under a real and immediate threat of being injured in the future. The threatened injury must be “certainly impending” and not merely speculative. Tandy at 1283

D.

Plaintiff’s “Reasonable Modification ” theory fails.

Plaintiffs cite Tyler v. Manhattan, 118 F.3d 1400 (10th Cir. 1997) and Crowder v. Kitigwa, 81 F.3d 1480 (9th Cir 1996), for the proposition that they are now asserting a “reasonable accommodation” claim. However, neither of these cases support such a claim in light of the submissions before this Court.

In Tyler, the Tenth Circuit affirmed the dismissal of a claim for compensatory damages under the ADA because, as is the case before this Court, the plaintiff had not alleged intentional discrimination.

The [trial] court concluded that compensatory damages for emotional distress were not available under the ADA absent intentional discrimination and that Tyler had not alleged intentional discrimination either in his complaint or in the pretrial order.
Tyler v. City of Manhattan 118 F.3d at 1402 -1403. The Tenth Circuit thus concluded:

We have reviewed the pretrial order and agree with the district court that the order does not describe acts of intentional
8

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wrongdoing. Instead, it is apparent that the order describes acts and omissions which have a disparate impact on disabled persons in general but not specific acts of intentional discrimination against Tyler in particular. Furthermore, there are no allegations in the pretrial order that the City was motivated by animus toward the disabled generally or Tyler specifically.
Tyler v. City of Manhattan 118 F.3d at 1403. Thus the claim for compensatory damages for mental and emotional injuries was stricken. This case, rather than supporting the proposition for which Plaintiff’s cite it, does not in fact address that issue, but instead supports Defendants motion to dismiss Plaintiffs’ claim for compensatory damages due to the absence of any allegations of intentional discrimination. On the contrary, Defendants were simply enforcing a state statute. Plaintiffs’ reliance on Crowder is also misplaced. In Crowder, a class of visually impaired persons who used guide dogs brought suit seeking exemption from imposition of 120day quarantine on carnivorous animals entering Hawai’i on the ground that the program, which was designed to prevent importation of rabies, violated ADA and their constitutional rights. The Ninth Circuit held that the trial court erroneously entered summary judgment in favor of defendants because a genuine dispute of material fact existed as to whether plaintiffs' proposed alternatives to Hawai'i's quarantine were "reasonable modifications" under the terms of ADA. In Crowder, the plaintiffs had requested certain modifications to the state statute, however, the state legislature had previously considered the alternatives proposed by the plaintiffs and did not adopt them. Marcia Barber requested that her father (Julianna’s grandfather) be permitted to supervise Julianna’s driving. Specifically, Plaintiffs requested a modification to the statute at issue “of permitting Julianna to drive with her grandfather, who is a licensed driver, before she turned 16.” (See Complaint at ¶35). Effective July 1, 2005, the statute was amended to permit a minor driver under 16, who has a minor’s instruction permit,
9

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to accumulate driving experience under the supervision of a licensed “parent, stepparent, GRANDPARENT WITH POWER OF ATTORNEY.” 1 Thus, the requested modification or accommodation has been made and the claim fails as a matter of law.2
E. The Associations have no standing in this case.
Associations may bring actions under the ADA on behalf of their members only if the
members have been discriminated against based on a disability, Addiction Specialists Inc. v.
Township of Hampton, 411 F.3d 399 (3rd Cir. 2005), and that the members are suffering
imminent or threatened injury. Lujan v. Defender of Wildlife, 504 U.S. 555 (1992). Since
none of the individual Plaintiffs have stated a claim, the associations’ claims must also fail.
JOHN W. SUTHERS Attorney General
s/ James X. Quinn ELIZABETH H. McCANN* Deputy Attorney General JAMES X. QUINN* Assistant Attorney General Litigation and Employment Law Section Attorneys for Defendants 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-4307 *Counsel of Record
1 As stated in the Memorandum Brief in Support of the Motion to Dismiss, the requirement that the grandparent have a limited power of attorney from the parent authorizing the grandparent to supervise the driving is designed to reinforce the General Assembly’s intent in ensuring that a parent maintains some control over the driving instruction for his or her child. Plaintiffs do not appear to contest the necessity of this requirement. 2 This also renders the claims for declaratory and injunctive relief moot as addressed in Defendants Motion to Dismiss.
10

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CERTIFICATE OF SERVICE I certify that on September 22, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses:

Amy F. Robertson arob@foxrob.com

s/ James X. Quinn

11

 </s> Case 1:05-cv-00807-REB-CBS Document 26 Filed 10/25/2005 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-00807-REB-CBS JULIANNA BARBER, by and through her next friend, MARCIA BARBER, et al.,
Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE, et al.,
Defendants.
PLAINTIFFS’ MOTION TO RECONSIDER THE COURT’S RULING DISMISSING THE CLAIMS OF JULIANNA AND MADELINE BARBER
Plaintiffs, by and through their attorneys, hereby respectfully request that this Court reconsider its ruling dismissing the claims of Julianna and Madeline Barber.
Plaintiffs opposed Defendants’ motion to dismiss the claims of Julianna and Madeline Barber on two theories: (1) that the girls themselves were the targets of discrimination based on their association with their mother, who was disabled; and (2) that the girls were harmed by discrimination targeted at their mother. The undersigned apologizes that her Memorandum in Opposition to Defendants’ Motion to Dismiss (“Opposition Brief”) may have failed sufficiently to distinguish the two separate theories. This Court’s Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss (“Order”) addressed only the former theory. Plaintiffs do not challenge the Court’s decision on this theory, but respectfully request the Court to address the latter theory and, on that theory, deny Defendants’ motion to dismiss the girls’ claims.

Case 1:05-cv-00807-REB-CBS Document 26 Filed 10/25/2005 Page 2 of 11

FACTS Marcia Barber, her daughters Julianna and Madeline, and two organizations brought suit to challenge Defendants’ refusal to make reasonable modifications permitting Ms. Barber -- who is legally blind -- to designate another adult to accompany her daughters as they learned to drive. Plaintiffs brought their challenge under title II of the Americans with Disabilities Act (“Title II”), 42 U.S.C. § 12131 et seq., and section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”). 29 U.S.C. § 794. On October 17, 2005, this Court issued its ruling on Defendants’ Motion to Dismiss, denying the motion as to the claims of Marcia Barber and the two organizations, and granting the motion as to Julianna and Madeline Barber on the grounds that there is no private right of action to enforce 28 C.F.R. § 35.130(g), the regulation prohibiting discrimination against nondisabled people based on their association with people with disabilities. (Order at 5-6.)
ARGUMENT I. This Court’s Order Addressed Only One of the Two Theories Asserted to
Support the Claims of Julianna and Madeline Barber. Julianna and Madeline Barber -- who are not themselves disabled -- opposed the motion to dismiss under two separate theories: (1) that they themselves suffered discrimination -- under 28 C.F.R. § 35.130(g) -- as individuals with an association or relationship with a person with a disability;1 and (2) that they were injured by the

1

Opposition Brief at 19-20.

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discrimination against their mother, a person with a disability.2 While the two theories appear similar, an illustration may help differentiate them. Imagine a child whose mother is HIV positive. The mother and child attempt to patronize a city-run swimming pool.
! It would be an example of the first theory if the pool employees told the child she could not use the swimming pool because her mother was HIV positive. That is, the child is the target of the discrimination, based on her association with a person who is HIV positive.
! It would be an example of the second theory if the pool employees told the mother she could not use the swimming pool, and the child suffered injury because -- requiring parental supervision -- she was unable to swim. That is, the child was injured by discrimination against her mother.
Only the first theory is based on section 35.130(g), which reads: A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association. The use of the phrase “exclude or otherwise deny equal services . . . to an individual . . . because of” the disability of an associate demonstrates that this prohibits discrimination targeted against people without disabilities who are associated with those with disabilities.

2

Id. at 18-19.

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This Court’s discussion of the matter addressed only this first theory, holding that “plaintiffs provide no argument or authority to suggest that [§ 35.130(g)] creates a cause of action in the absence of express statutory authorization.” (Order at 5.) The Court also noted correctly that the question of standing does not illuminate the question whether section 35.130(g) creates a private right of action. (Id. at 5 n.3.) The upshot of the Court’s ruling is that Julianna and Madeline do not have a private right of action -under section 35.130(g) -- to challenge discrimination against themselves on the basis of their association with their mother.
Plaintiffs do not challenge this ruling, but respectfully urge that this Court did not address the separate question whether Julianna and Madeline have standing to challenge discrimination against their mother that caused them injury. Plaintiffs respectfully request that this Court consider and rule on this basis supporting Julianna’s and Madeline’s claims. II. Julianna and Madeline Barber have a Private Right of Action and Standing
to Challenge Discrimination Against Their Mother, A Person With A Disability. A. There Is a Private Right of Action under Title II and the Rehabilitation
Act to Challenge Discrimination Against a Person with a Disability. Julianna and Madeline bring claims under Title II and the Rehabilitation Act based on the fact that they were injured by discrimination against their mother. These claims are not based on section 35.130(g). Rather, they challenge conduct that is prohibited by the language of the statutes themselves: discrimination against a person with a disability. See 42 U.S.C. § 12132 (prohibiting discrimination against qualified
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individuals with disabilities by public entities); 29 U.S.C. § 794 (prohibiting discrimination against qualified individuals with disabilities by recipients of federal financial assistance). The Tenth Circuit has held that there are private rights of action under Title II and the Rehabilitation Act, and that these rights of action extend to claims for disparate treatment, disparate impact and failure to make reasonable modifications. Chaffin v. Kansas State Fair Board, 348 F.3d 850, 859-60 (10th Cir. 2003); see also 42 U.S.C. § 12133 (establishing a private right of action under Title II); 29 U.S.C. § 794a(a)(2) (establishing a private right of action under the Rehabilitation Act).
The leading case on creation of private rights of action, Alexander v. Sandoval, stands for the proposition that a regulation cannot create private right of action to challenge conduct that the statute in question permits. 532 U.S. 275, 285 (2001). In that case, because Title VI of the Civil Rights Act3 prohibited only intentional discrimination, the Court held that regulations prohibiting disparate impact discrimination could not create a private right of action. Id.
As the Court recently made clear, however, this analysis does not apply where the conduct in question is prohibited by the language of the statute itself. Jackson v. Birmingham Bd. of Educ., 125 S.Ct. 1497, 1506 (2005). The plaintiff in Jackson was a teacher who sued his employer under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., alleging that the employer retaliated against him for complaining about sex discrimination in the school’s athletic program. Id. at 1502. The

3

42 U.S.C. § 2000d.

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defendant argued, under Sandoval, that the teacher had no private right of action to enforce the Title IX regulation barring retaliation. The Court rejected this argument based on its holding that the challenged conduct -- retaliation -- was a type of discrimination prohibited by the language of the statute itself, and was, therefore, included in that statute’s private right of action. Id. at 1506.
The claims of Julianna and Madeline Barber are in a situation similar to those of the plaintiff in Jackson: They challenge conduct explicitly prohibited by the statutes at issue, that is, discrimination against a person with a disability. See 42 U.S.C. § 12132, 29 U.S.C. § 794. Because the Tenth Circuit has held that private rights of action exist to enforce these statutes, there is no question that private rights of action exists to challenge discrimination against Marcia Barber. The only remaining question is whether Julianna and Madeline have standing to bring those claims.
B. Julianna and Madeline Barber Have Standing To Bring A Claim Under Title II and the Rehabilitation Act.
Under Tenth Circuit precedent, Julianna and Madeline Barber have standing to raise claims for injuries caused by Defendants’ discrimination against their mother. That court has held that standing under Title II and the Rehabilitation Act extends to the full limits of Article III. Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004). Any individual or entity -- disabled, nondisabled or corporate -- may raise claims under those statutes if he, she or it satisfies the requirements of Article III. Because Julianna Barber has suffered -- and Madeline will suffer -- injury caused by Defendants’ discrimination against their mother, which injuries will be redressed by the relief they
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request, they have Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
Because standing under Title II and the Rehabilitation Act extends to the full limits of Article III, Julianna and Madeline Barber may bring suit despite the fact that they are not disabled and were not the target of the discrimination.4 This is demonstrated by, for example, Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972), in which the Court recognized that white tenants had standing under the Fair Housing Act (“FHA”)5 based on the fact that they lived in a building in which the owner had discriminated against African-Americans. The white tenants were not the targets of discrimination but had been injured by the discrimination because they had missed out on the advantages of an integrated community. Id. at 208-12. The Trafficante Court based its expansive reading of standing under the FHA on that statute’s broad enforcement provision, which permitted a “person aggrieved” to bring suit to challenge prohibited practices. Id., at 209. The Rehabilitation Act uses that same language, permitting enforcement by “any person aggrieved by any act or failure to act by any recipient of Federal assistance.” 29 U.S.C. § 794a(a)(2). Title II is similarly broad, permitting enforcement by “any person alleging discrimination on the basis of disability.”

4

Where standing “extend[s] to the full limits of Art. III, the normal prudential

rules do not apply; as long as the plaintiff suffers actual injury as a result of the

defendant’s conduct, he is permitted to prove that the rights of another were infringed.”

Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n.9 (1979).

5

42 U.S.C. § 3401 et seq.

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Case 1:05-cv-00807-REB-CBS Document 26 Filed 10/25/2005 Page 8 of 11

42 U.S.C. § 12133 (emphasis added).6 In addition, Defendants and Plaintiffs agree that “the Rehabilitation Act is materially identical to and the model for the ADA.”7
The Tenth Circuit relied on the breadth of Title II’s enforcement provision in determining that standing under both that statute and the Rehabilitation Act extended to the full limits of Article III. See Tandy, 380 F.3d at 1287. The similarity of the enforcement language of both statutes to that of the FHA at issue in Trafficante demonstrates that, as the Supreme Court held in that case, members of a nonprotected class (such as Julianna and Madeline) have standing to challenge discrimination against a member of the protected class (their mother) when they are injured by that discrimination.
Julianna and Madeline Barber have properly alleged claims under Title II and the Rehabilitation Act because they were (or, in Madeline’s case, will be) injured by Defendants’ discrimination against their mother, Marcia Barber.

6

As the Supreme Court made clear in Jackson, it is crucial that the statute

reads “on the basis of disability,” rather than “on the basis of the individual’s disability.”

In Jackson, the Court rejected the defendant’s argument that the plaintiff, a man, could

not sue under Title IX, which bars sex discrimination. The Court relied on the fact that

the statute provided that “no person shall be subject to discrimination on the basis of

sex” and not “discrimination on the basis of such individual’s sex.” Id., 125 S.Ct. at

1507 (emphasis in original). The Court concluded, “The statute is broadly worded; it

does not require that the victim of the retaliation must also be the victim of the

discrimination that is the subject of the original complaint.” Id. Title II’s enforcement

provision is similarly broad and does not require that the injured party also be the victim

of the discrimination.

7

See Mem. in Support of Defs.’ Mot. to Dismiss at 5 (citation omitted).

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III. Under the Standard of Review for Motions to Dismiss, The Claims of Julianna and Madeline Barber Should Not Have Been Dismissed. “A court may dismiss a complaint only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the allegations.” Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 507 (2002); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Julianna and Madeline Barber have alleged facts sufficient to meet this standard:
! The Court has recognized that Plaintiffs have stated a claim for discrimination against Marcia Barber, who is a person with a disability (see Order at 4-5, see also Amd. Cmplt. ¶¶ 6, 35-44);
! Plaintiffs have alleged that Julianna was harmed, and Madeline will be harmed, by this discrimination. (Amd. Cmplt. ¶¶ 32-34, 61, 65).
The undersigned regrets any confusion caused by the lack of clarity in the Amended Complaint and/or Opposition Brief, and respectfully requests the opportunity to replead Plaintiffs’ complaint to clarify that Julianna and Madeline are now not proceeding under 28 C.F.R. § 35.130(g), but only on the theory that they were harmed by discrimination against their mother.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court reconsider its Order, and deny Defendants’ Motion to Dismiss with respect to the claims of Julianna and Madeline Barber, on the grounds that they have a private right of action -- and standing to bring it -- to challenge the discrimination against their mother.
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CERTIFICATION PURSUANT TO LOCAL RULE 7.1A The undersigned certifies that she conferred with counsel for Defendants’ who indicated that Defendants oppose this motion. Respectfully submitted,
s/ Amy Farr Robertson Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700 Kevin W. Williams Legal Program Director Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775 Attorneys for Plaintiff
Dated: October 25, 2005
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Case 1:05-cv-00807-REB-CBS Document 26 Filed 10/25/2005 Page 11 of 11
Certificate of Service
I hereby certify that on October 25, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address:
Elizabeth H. McCann beth.mccann@state.co.us
s/ Amy Farr Robertson Amy F. Robertson Attorney for Plaintiffs Fox & Robertson, PC 910 16th Street Suite 610 Denver, CO 80202 303.595.9700 (voice) 303.595.9705 (fax) arob@foxrob.com

 </s> Case 1:05-cv-00807-REB-CBS Document 33 Filed 11/25/05 USDC Colorado Page 1 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-807-RB-CBS JULIANNA BARBER, by and through her next friend, Marcia Barber; MADELINE BARBER, by and through her next friend, Marcia Barber; MARCIA BARBER; COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; and AMERICAN COUNCIL OF THE BLIND OF COLORADO, INC., a Colorado non-profit corporation, Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES; M. MICHAEL COOK, in her individual and official capacity as Executive Director of the Colorado Department of Revenue; and STEVE TOOL, in his individual and official capacity as Senior Director of the Colorado Division of Motor Vehicles, Defendants.
RESPONSE TO PLAINTIFFS’ MOTION TO RECONSIDER
The Defendants, through the Colorado Attorney General, respectfully submit the following Response to “Plaintiffs’ Motion to Reconsider the Court’s Order Dismissing the Claims of Julianna and Madeline Barber” (“the “Motion to Reconsider”).

Case 1:05-cv-00807-REB-CBS Document 33 Filed 11/25/05 USDC Colorado Page 2 of 9
I. PRELIMINARY STATEMENT Plaintiffs brought this action seeking damages, declaratory, and injunctive relief against the Colorado Department of Revenue, the Division of Motor Vehicles, the Executive Director of the Department of Revenue and the Senior Director of the Division of Motor Vehicles, all based on § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”), and Title II of the Americans with Disabilities Act, 42 U.S.C. § § 12131 – 34 (the “ADA”). Plaintiffs, a mother and her two daughters, maintain that the statute in effect prior to July 1, 2005 violated the Rehabilitation Act and the ADA because it allowed a stepparent or guardian who is a licensed driver to supervise a fifteen year old with an instructional permit. Because Marcia Barber (mother) is blind, and thus not licensed to operate a motor vehicle, she was not qualified pursuant to statute to supervise her daughter while her daughter accumulated experience necessary to receive an unrestricted driver’s license when she turns sixteen. Plaintiffs maintain that Defendants failed to make reasonable modifications by allowing Julianna’s (daughter) grandfather to supervise her driving while she had her instructional permit prior to her sixteenth birthday. On October 17, 2005, this Court granted Defendants’ Motion to Dismiss in part. Specifically, the Court dismissed the claims of Julianna and Madeline Barber concluding that they did not assert viable claims
2

Case 1:05-cv-00807-REB-CBS Document 33 Filed 11/25/05 USDC Colorado Page 3 of 9
under either the ADA or the Rehabilitation Act. The Court further held that Plaintiffs failed to provide any argument or authority that 28 C.F.R. § 35.130(g) creates a cause of action in the absence of express statutory authority. The Court’s order reflects the law.
On October 25, 2005, Plaintiff’s filed their Motion to Reconsider. The Motion raises the same issues previously addressed by the Court in its October 17, 2005 Order and should be denied. (See Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss at p. 5, FN 3). Additionally, the purported claims of Julianna and Madeline as stated in the Motion to Reconsider, are not set forth in the Amended Complaint. Finally, even if the claims had been asserted in the Amended Complaint, they fail as a matter of law. Accordingly, Plaintiffs’ Motion to Reconsider is not supported by law and should be denied.
IV. ARGUMENT A. The Court’s October 17, 2005 Order addressed all issues raised
in the Motion to Reconsider. As correctly noted by the Court, in order to assert a cause of action under the ADA or the Rehabilitation Act, a plaintiff must prove:
(1) that he [or she] is a qualified individual with a disability; (2) that he [or she] was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and
3

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(3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999); Amirault v. City of Roswell, 120 F.3d 270 (10th Cir. 1997). "The Rehabilitation Act is materially identical to and the model for the ADA…." Crawford v. Indiana Department of Corrections, 115 F.3d 481, 483 (7th Cir. 1997). A Rehabilitation Act claim has the additional element of receipt of federal funds. Other than this requirement, the elements are the same. In the Motion to Reconsider, Plaintiffs allege that they opposed the motion to dismiss on two distinct theories: (1) that the daughters were discriminated against based on their association with their mother, and (2) that they were allegedly harmed by the alleged discrimination against their mother. The Motion argues that while the Court addressed the first theory, and that Plaintiffs do not contest the Court’s ruling on this theory, they allege that the Court failed to address the second theory.1 The Motion raises arguments already addressed by the Court. It is undisputed that neither Julianna nor Madeline are disabled, and that they fail as a matter of law to meet the requisite elements of an ADA or Rehabilitation Act claim. This Court rejected Plaintiff’s attempt to assert an association discrimination claim under Title II of the ADA. The Court
4

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concluded that there was no statutory authorization for an association discrimination claim under Title II, and that
Plaintiffs provided no legal authority or argument that the Federal Regulation relied upon by the Plaintiffs to assert such claim “create[d] a cause of action in the absence of express statutory authorization.” (Order at p. 5). The Court also rejected Plaintiffs’ arguments that the daughter’s claims were viable because the Tenth Circuit has found that standing under Title II extends to the full limits of Article III. Specifically the Court concluded: “Whatever the legitimacy of this argument in relation to issues of standing, it offers no guidance when considering whether associational discrimination is a substantive claim under Title II.” (Order at p. 5, FN 3). Thus, Plaintiffs’ assertion that they are raising a distinct claim merely because the daughters were allegedly harmed by the alleged “discrimination targeted at their mother” 2 fails to raise a claim that was not previously addressed by the Court in its October 17, 2005 Order. B. Julianna and Madeline Barber are not entitled to relief for
alleged injuries. Plaintiffs now allege, although not plead in the Amended Complaint, that Julianna and Madeline’s Title II and Rehabilitation Act claims are
1 This distinction in claims is neither apparent, nor implicit in Plaintiff’s Amended Complaint. 2 Moreover, it is apparent that Madeline, who is 13 years of age has not sustained any damage whatsoever, she is neither qualified nor eligible to receive a driver’s permit.
5

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based on the alleged “fact that they were injured by discrimination against their mother” and “raise claims for injuries caused by Defendants’ discrimination against their mother.” (Motion to Reconsider at pp. 4, 6). Their claim lacks legal foundation.
First, it is apparent that both the ADA and the Rehabilitation Act are designed to prevent discrimination against disabled individuals. It necessarily follows that a disparate impact claim under these provisions is designed to eliminate discrimination and barriers that have a disparate impact on the disabled, not the able bodied. Plaintiffs cite Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003) for the proposition that the rights of action under the ADA and the Rehabilitation Act extend to claims for disparate treatment, disparate impact and failure to make reasonable modifications. While this may be true, it is of no significance here. The Court ruled in its Order that the Amended Complaint did not properly assert claims for disparate impact and reasonable accommodations by the daughters.
It is apparent that in order to assert a disparate impact claim, the person asserting the claim must be a member of the class protected by the ADA and Rehabilitation Act, namely the disabled. Plaintiffs rely upon Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972), a case in which the white tenants had standing under the Fair Housing Act to challenge a landlord's discrimination against
6

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nonwhites as supportive of their argument that Julianna and Madeline have standing in this case. The purported claims advanced in the Motion to Reconsider involve alleged disparate impact disability discrimination claims for damages by able bodied individuals, an issue not addressed by Trafficante or other decisions cited by Plaintiffs relating to enforcement of the ADA or Rehabilitation Act by the non disabled. Plaintiffs’ reliance on Trafficante is misplaced.
Plaintiffs unquestionably state in their Motion to Reconsider, that both Julianna and Madeline are asserting claims for alleged injuries they sustained as a result of the alleged discrimination against their mother. (See Motion to Reconsider at pp. 3-4). Therefore, it cannot be disputed that claims for injuries are claims seeking damages.3 Even assuming, arguendo, that they had standing to assert such claims, the claims fail.
First, none of the Plaintiffs seek damages against any of the individually named Defendants in the Amended Complaint. (See Amended Complaint at p. 10). Moreover, to the extent Julianna and Madeline now seek such damages, the claim fails. Claims against the individual defendants in their individual capacities are not cognizable under the ADA or Rehabilitation Act. See Montez v. Romer 32 F.Supp.2d 1235, 1241 (D.Colo. 1999) (Applying appropriate statutory analysis determining
7

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that claims against individuals are not cognizable under the ADA). In addition, the official capacity claims as well as the claims against the State entities under the ADA are barred by the Eleventh Amendment. See Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374 (2001); Thompson v. Colorado, 278 F.3d 1020 (10th Cir. 2001).
Moreover, as stated above, Plaintiff’s do not, and cannot, seek damages against the individually named Plaintiffs in their Amended Complaint. While a plaintiff may recover damages against a state under the Rehabilitation Act, as noted by the Court, the law in this circuit requires that a plaintiff show intentional discrimination to be entitled to compensatory damages under the Rehabilitation Act. Powers v. MJB Acquisition Corp., 184 F. 3d 1147, 1153 (10th Cir. 1999). To the extent Madeline and Julianna seek compensation for injuries under the Rehabilitation Act and the ADA under a disparate impact theory, such a claim belies any assertion of intentional discrimination. Put simply, because the claim is based upon a disparate impact theory, neither Julianna nor Madeline can allege, much less prove, that they were intentionally discriminated against in order to receive compensation for their alleged injuries.
3 The fact that their claims are for damages is also bolstered by the fact that Julianna has already received her driver’s license and thus could not be seeking injunctive relief.
8

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WHEREFORE, Defendants respectfully request that the Court dent Plaintiffs’ Motion to Reconsider.
Dated this 25th day of November, 2005. JOHN W. SUTHERS Attorney General
/s/ James X. Quinn ELIZABETH H. McCANN* Deputy Attorney General JAMES X. QUINN* Assistant Attorney General Litigation Section Attorneys for Defendants 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-4307 *Counsel of Record
CERTIFICATE OF SERVICE I certify that on November 25, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Amy F. Robertson arob@foxrob.com
/s/ James X. Quinn
9

 </s> Case 1:05-cv-00807-REB-CBS Document 34 Filed 12/09/2005 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-00807-REB-CBS JULIANNA BARBER, by and through her next friend, MARCIA BARBER, et al.,
Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE, et al.,
Defendants.
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF MOTION TO RECONSIDER
Plaintiffs, by and through their attorneys, hereby respectfully submit their Reply Brief in Support of Motion to Reconsider.
Plaintiffs Julianna and Madeline Barber (“the Daughters”) assert claims against Defendants under Title II of the Americans with Disabilities Act (“Title II”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, based on Defendants’ discrimination against their mother, Marcia Barber, who is blind. The Daughters have claims against Defendants because they suffered (or will suffer) injuries caused by Defendants’ discrimination.
Procedural Status Both this Court’s Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss (“Order”) and Defendants’ Response to Plaintiffs’ Motion to Reconsider (“Response”) have made clear that Plaintiffs’ Amended Complaint was not a model of clarity. In its Order, the Court generously gave Plaintiffs leave to file an amended

Case 1:05-cv-00807-REB-CBS Document 34 Filed 12/09/2005 Page 2 of 11

complaint, albeit -- in light of the content of the Order -- one that did not include the Daughters.1 Because Defendants’ Response repeatedly attempts to rely on this lack of clarity in opposing Plaintiffs’ Motion to Reconsider the Court’s Ruling Dismissing the Claims of Julianna and Madeline Barber (“Motion to Reconsider”), Plaintiffs have taken the liberty of drafting -- and attaching hereto as Exhibit A -- a proposed Second Amended and Supplemental Complaint which still includes the Daughters’ claims but which provides clarity concerning the claims asserted and relief requested by each Plaintiff and against each Defendant.
The proposed Second Amended and Supplemental Complaint makes clear that: ! Plaintiff Marcia Barber, and Organizational Plaintiffs Colorado Cross Disability
Coalition and American Council of the Blind of Colorado assert claims for discrimination based only on failure to modify policies,2 id. ¶¶ 67, 73; ! the Daughters assert claims based on injuries caused by Defendants’ discrimination against their mother, Marcia Barber, id. ¶¶ 69(b), 76(b); ! the only damages sought are compensatory damages by Marcia and Julianna Barber under the Rehabilitation Act against the state agency Defendants,3 id. at 14 ¶ 4;

1

See Order at 8-9.

2

See id. at 6-7. Plaintiffs originally asserted claims for disparate impact

discrimination but have elected, in order to streamline the case, to proceed only on their

failure to modify claim.

3

See id. at 8.

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! Plaintiffs Marcia and Madeline Barber and the Organizational Plaintiffs seek injunctive relief against all Defendants under both statutes (and thus that the only relief sought by the Organizational Plaintiffs is injunctive4), id. at 14 ¶ 3; and
! Defendants engaged in intentional discrimination and/or were deliberately indifferent because they repeatedly denied Plaintiff Marcia Barber’s requests for reasonable modifications.5 ¶¶ 31-39, 74. Should this Court grant Plaintiffs’ Motion to Reconsider, Plaintiffs will move for
leave to file the attached proposed Second Amended and Supplemental Complaint. ARGUMENT
Defendants make three arguments in response to Plaintiffs’ Motion to Reconsider: (1) that this Court previously addressed the argument that Plaintiffs request the Court to reconsider; (2) that one of the cases on which Plaintiffs rely does not apply in the context of disparate impact; and (3) that the Daughters are not entitled to the relief they seek. None of these arguments has merit.
Most important, none of Defendants’ arguments addresses -- much less attempts to rebut -- Plaintiffs’ fundamental arguments: (1) that the Daughters’ substantive claims are grounded in the language of the statutes, not the regulations, because they

4

See id. at 7-8.

5

See id. at 6 n.4. In addition, Plaintiffs have substituted Joan Vecchi, the

current Acting Senior Director of the Division of Motor Vehicles, for Steve Tool, who no

longer holds that position, and have supplemented the Amended Complaint to allege

facts that have occurred since the filing of that pleading. See, e.g., Ex. A, ¶¶ 40-47.

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challenge conduct prohibited by the statutory language itself: discrimination against a person with a disability; and (2) that the Daughters may assert claims based on injuries they suffered as a result of Defendants’ discrimination against their mother. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n.9 (1979) (holding that where standing “extend[s] to the full limits of Art. III, the normal prudential rules do not apply; as long as the plaintiff suffers actual injury as a result of the defendant’s conduct, he is permitted to prove that the rights of another were infringed.”). The Daughters’ claims are thus valid. I. This Court Did Not Resolve The Question Whether the Daughters had
Claims Based On Injuries Caused by Discrimination Against Their Mother. Plaintiffs have requested this Court to reconsider its dismissal of the Daughters’ claims on the grounds that the Order did not rule on one of the two theories on which those claims are based. The Court held that the regulation barring discrimination against the Daughters based on their association with their mother -- 28 C.F.R. § 35.130(g) -- was not authorized by the statute. (Order at 5.) It also held that Plaintiffs’ argument that the Daughters had standing to sue based on injuries caused by discrimination against their mother “offer[ed] no guidance when considering whether associational discrimination is a substantive claim under Title II.” (Id. at 5 n.3.) That is, that Plaintiffs’ standing argument did not inform the analysis of whether section 35.130(g) -- the substantive associational discrimination provision -- was authorized by the statute. As previously stated, Plaintiffs do not contest this holding.
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With respect -- and recognizing that it may have been due to Plaintiffs’ failure adequately to distinguish the two arguments in their Memorandum in Opposition to Defendants’ Motion to Dismiss -- this Court did not address the separate question whether the Daughters had claims for injuries they incurred as a result of discrimination against their mother. That is, that the Daughters had claims based directly on the statutory language rather than on section 35.130(g). For the reasons set forth above and in Plaintiffs’ Motion to Reconsider, Plaintiffs demonstrated that the Daughters’ claims based on discrimination against their mother were valid. (See Motion to Reconsider at 4-8.) Furthermore, Plaintiffs have made clear in their proposed Second Amended and Supplemental Complaint that the Daughters proceed only on the theory that they were injured by discrimination against their mother; they do not proceed under section 35.130(g), the theory rejected by this Court. (See Ex. A, ¶¶ 69(b), 76(b).) II. The Daughters May Assert Claims Based on Injuries They Sustained as a
Result of Defendants’ Discrimination Against Their Mother. Plaintiffs allege that Defendants discriminated against Marcia Barber by denying her request for reasonable modifications of Defendants’ policies. The Tenth Circuit has explicitly held that this conduct constitutes discrimination under Title II and the Rehabilitation Act, Chaffin v. Kansas State Fair Board, 348 F.3d 850, 858 (10th Cir. 2003). To demonstrate that the Daughters -- who are not disabled -- had claims for injuries caused by Defendants’ discrimination against their mother -- who is disabled -Plaintiffs cited Trafficante v. Metro. Life Ins. Co., 409 U.S. 205 (1972), a case in which
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the Supreme Court held that white plaintiffs could assert claims based on injuries caused by housing discrimination against blacks.
Defendants attempt to distinguish Trafficante on the grounds that it did not involve disparate impact disability discrimination.6 The holding in Trafficante, however, was not based on the type of discrimination alleged. Rather, the Supreme Court relied on the broad language of the remedial provision of the Fair Housing Act, which granted relief to any “‘person aggrieved,’” which was defined as “‘(a)ny person who claims to have been injured by a discriminatory housing practice.’” Trafficante, 409 U.S. at 20708 (quoting 42 U.S.C. § 3610 (1972)).
The remedial provisions of Title II and the Rehabilitation Act are similarly broad (see Motion to Reconsider at 7-8), and thus permit claims by any plaintiff -- including a plaintiff without a disability -- who was injured by conduct recognized to constitute discrimination under the statutes. Accordingly, at least one court has explicitly relied on Trafficante to recognize a claim brought by a corporate entity -- that is, not brought by a person with a disability -- based on reasonable modification claims under the ADA and Rehabilitation Act. Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 42, 47 (2d Cir. 1997) (relying on Trafficante and holding that corporation had standing under Title II and the Rehabilitation Act for failure to modify claim).

6

Response at 7. Because Plaintiffs no longer bring claims for disparate

impact discrimination, this argument is moot. Defendants also imply that Trafficante is

distinguishable because the case at bar involves “a claim for damages.” Id. The

plaintiffs in Trafficante, however, also sought damages. See Trafficante v. Metro. Life

Ins. Co., 446 F.2d 1158, 1159 (9th Cir. 1971).

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III. Plaintiffs’ Claims for Relief are Proper. Defendants raise two challenges to Plaintiffs’ claims for relief, one of which is new
-- that is, not raised in their Motion to Dismiss -- and the other of which was raised in their Motion to Dismiss and resolved by this Court in its Order. Defendants’ new argument is that the claims against the State entities under the ADA are barred by the Eleventh Amendment. They also reprise their argument that the Daughters have not sufficiently alleged intent to support claims for compensatory damages under the Rehabilitation Act. Neither argument has any merit.
A. Plaintiffs’ Claims for Injunctive Relief Under Title II Against the Individual Defendants in their Official Capacities are Proper.
As Plaintiffs’ currently operative Amended Complaint makes clear, the only relief Plaintiffs seek under Title II of the ADA is injunctive. Amd. Cmplt. at 10. Such relief is not barred by the Eleventh Amendment. While damages claims against the state are barred by that amendment, the Tenth Circuit has made clear that plaintiffs may bring Title II claims for injunctive relief against state officials in their official capacities under the doctrine of Ex parte Young, 209 U.S. 123 (1908). See Chaffin v. Kansas State Fair Board, 348 F.3d 850, 866-67 (10th Cir. 2003). Thus, Plaintiffs’ request for injunctive relief under Title II against the individual defendants in their official capacities is proper.
B. Plaintiffs Have Alleged Intentional Conduct Sufficiently to Support a Claim for Compensatory Damages under the Rehabilitation Act.
Defendants argue that the Daughters have not alleged intentional conduct sufficient to support a claim for damages under the Rehabilitation Act. (Response at 8.)
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As the proposed Second Amended and Supplemental Complaint clarifies, Madeline Barber does not seek compensatory damages, but only injunctive relief to ensure that, when she turns 15 slightly over one year from now -- a very short time in light of fact that the Parties have not yet convened a scheduling conference in this case -- she will not incur the same injury her older sister did.7 Julianna Barber has sufficiently alleged intentional conduct to support her claim for compensatory damages.8
In order to recover compensatory damages under the Rehabilitation Act, Plaintiffs are required to allege and prove intentional conduct, defined to include conduct that demonstrates “deliberate indifference to the strong likelihood that pursuit of [Defendants’] questioned policies will likely result in a violation of federally protected rights.” Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1152-53 (10th Cir. 1999).
Defendants made this same argument in their Motion to Dismiss. (See id. at 22.) In response, Plaintiffs demonstrated that, in the context of a request for reasonable modifications, it is sufficient to allege that the plaintiff “alerted the public entity to his need for accommodation,” and that the defendant’s failure to act was “more than negligent, and involve[d] an element of deliberateness.” Duvall v. County of Kitsap, 260

7

Defendants argue that Madeline has not suffered damage. Response at 5

n.2. Plaintiffs incorporate by reference their response to this argument from their

Memorandum in Opposition to Defendants’ Motion to Dismiss. See id. at 14-16.

8

Defendants also argue that “[c]laims against the individual defendants in

their individual capacities are not cognizable under the ADA or Rehabilitation Act.”

Response at 7. The proposed Second Amended and Supplemental Complaint makes

clear that the individual defendants are sued only in their official capacities. See Ex. A

at 1.

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Case 1:05-cv-00807-REB-CBS Document 34 Filed 12/09/2005 Page 9 of 11
F.3d 1124, 1139 (9th Cir. 2001); see also Love v. Westville Correctional Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (failure to provide accommodations constitutes intentional discrimination). The Amended Complaint alleged Marcia Barber’s repeated requests for reasonable modifications and Defendants’ repeated denials of those requests. (Id. ¶¶ 35-43.)
This Court denied Defendants’ Motion to Dismiss on these grounds, but provided Plaintiffs leave to allege deliberate indifference in greater detail. (Order at 6 n.4.) Plaintiffs’ proposed Second Amended and Supplemental Complaint does this. (Ex. A ¶¶ 31-39, 74.) These allegations make clear that Plaintiff Marcia Barber repeatedly requested reasonable modifications, explicitly asserting her federally-protected rights under the ADA and Rehabilitation Act. (Id. ¶¶ 31, 33, 34, 37, 38.) They also make clear that Defendants intentionally and deliberately refused Ms. Barber’s requests, explicitly rejecting her assertion of rights under the ADA and Rehabilitation Act. (Id. ¶¶ 32, 35, 39.) Under the standard set forth in Duvall and Love, Marcia Barber alleged intentional conduct that is more than sufficient to support her claims for compensatory damages. Because Julianna Barber alleges injury based on this discrimination against her mother, her claims are thus based on intentional conduct as well.
Conclusion For the reasons set forth above and in Plaintiffs’ Motion to Reconsider, Plaintiffs respectfully request this Court reconsider its Order, and deny Defendants’ Motion to Dismiss with respect to the claims of Julianna and Madeline Barber, on the grounds that
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they have a private right of action -- and standing to bring it -- to challenge the discrimination against their mother.
If it would aid the Court, Plaintiffs respectfully request oral argument on this Motion.
Respectfully submitted,
s/ Amy Farr Robertson Amy Farr Robertson (arob@foxrob.com) Timothy P. Fox (tfox@foxrob.com) Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 Voice: 303.595.9700 Fax: 303.595.9705 Kevin W. Williams, Legal Program Director (kwilliams@ccdconline.org) Carrie Ann Lucas, Equal Justice Works Fellow (clucas@ccdconline.org) Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 Voice: 303.839.1775 Fax: 303.839.1782 Attorneys for Plaintiff
Dated: December 9, 2005
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Certificate of Service
I hereby certify that on December 9, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address:
Elizabeth H. McCann beth.mccann@state.co.us
s/ Amy Farr Robertson Amy Farr Robertson Attorney for Plaintiffs Fox & Robertson, PC 910 16th Street Suite 610 Denver, CO 80202 303.595.9700 (voice) 303.595.9705 (fax) arob@foxrob.com

 </s> Case 1:05-cv-00807-REB-CBS Document 62 Filed 11/08/06 USDC Colorado Page 1 of 20
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-807-REB-CBS JULIANNA BARBER, by and through her next friend, Marcia Barber; and MARCIA BARBER; Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES; M. MICHAEL COOK, in her official capacity as Executive Director of the Colorado Department of Revenue; and JOAN VECCHI, in her official capacity as Senior Director of the Colorado Division of Motor Vehicles, Defendants.
MEMORANDUM BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The Defendants, through the Colorado Attorney General, respectfully submit the following Memorandum Brief in Support of their Motion for Summary Judgment.
PRELIMINARY STATEMENT The sole remaining claim in this case is a claim for compensatory damages pursuant to section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”) brought by a mother and her daughter. The Rehabilitation Act prohibits discrimination based on one's disabilities. In Colorado, individuals between the ages of 15 and 16 may obtain a minor driving instruction permit. In 2004, when the events that led to the filing of this lawsuit occurred, minors with such permits were allowed to practice driving under the supervision of a licensed parent, stepparent or guardian. C.R.S. § 42-2-106(1)(b)(2004).

Case 1:05-cv-00807-REB-CBS Document 62 Filed 11/08/06 USDC Colorado Page 2 of 20
Minors with a learner’s permit are required to obtain 50 hours of supervised driving and have their permit for 1 year before obtaining their license after they turn sixteen. Marcia Barber (mother) is blind, and thus not licensed to operate a motor vehicle. She was not qualified pursuant to statute to supervise Julianna Barber (daughter) while Julianna accumulated experience necessary for her to receive an unrestricted driver’s license when she turned sixteen. Marcia Barber maintains that Defendants discriminated against her on the basis of her disability when they allegedly failed to make reasonable modifications by allowing Julianna’s grandfather to supervise her driving while she had her instructional permit prior to her sixteenth birthday. Julianna maintains that although she is not disabled and was not discriminated against, she sustained damages as a result of the alleged discrimination against her mother. See Barber, et al., v. State of Colorado, et al., 2006 WL 213970 (D. Colo. 2006).
The claims initially asserted by Plaintiffs in this action included claims for injunctive relief to force Defendants to make such a reasonable modification under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. In 2005, in response to Plaintiff’s concerns, the Colorado General Assembly passed, and the Governor signed, a bill amending § 42-2-106(1)(b) to allow supervision by a grandparent with power of attorney. In 2006 the General Assembly broadened the statute further to allow all parents who do not have licenses to designate another licensed driver over the age of 21 to supervise their minor children’s driving. As acknowledged by Plaintiffs, this new statute rendered moot Plaintiffs’ claims for injunctive relief. As such, the parties stipulated to dismiss all claims for injunctive relief, as well as all claims under Title II of the Americans with Disabilities Act and all claims of Plaintiffs Madeline Barber, the Colorado Cross
2

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Disability Coalition, and the American Council of the Blind of Colorado. Accordingly, the sole remaining claim is brought by Marcia and Julianna Barber for compensatory damages against the Entity Defendants for alleged violation of the Rehabilitation Act. (See Docket #36 at p. 16; Docket # 52 and 55).
STATEMENT OF UNDISPUTED MATERIAL FACTS 1. Julianna Barber is a resident of Colorado Springs, Colorado. At the time of the filing of the Second Amended Complaint she was 16 years old. (Second Amended Complaint at ¶ 4). 2. Marcia Barber is a resident of Colorado Springs, Colorado, and is the mother of Julianna. She suffers from retinitis pigmentosa and is limited in the major life activity of seeing. (Second Amended Complaint at ¶ 6). 3. Marcia Barber does not have a driver’s license. (Second Amended Complaint at ¶ 29). 4. Julianna’s father, though not disabled, does not have a driver’s license. (Second Amended Complaint at ¶ 28). 5. Colorado Residents are eligible to apply for a minor’s driver’s license at age 16. Colo. Rev. Stat. § 42-2-104 (1)(c). (Second Amended Complaint at ¶ 21). 6. At the age of 15, individuals may obtain a minor’s instruction permit under certain circumstances. (Second Amended Complaint at ¶ 22). 7. In order to obtain an instructional permit, a person who is 15 years old, must be enrolled in an approved driver education course. In addition, the person must provide a written statement signed by the “parent, stepparent, or guardian and the instructor…”
3

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establishing such enrollment. Colo. Rev. Stat. § 42-4-106(1)(b). (Second Amended Complaint at ¶ 24).
8. Prior to 2005, the permit issued pursuant to this section authorized the minor to drive “under the supervision of the parent, stepparent or guardian who cosigned the application for the minor’s instruction permit if such parent, stepparent or guardian holds a valid driver’s license.” (Exhibit A, prior version of § 42-2-106(b)).
9. Such permit also entitled the applicant to drive a motor vehicle, which is marked so as to indicate that it is a motor vehicle used for instruction and which is properly equipped for such instruction upon highways when accompanied by or under the supervision of an approved driver education instructor who holds a valid driver’s license. (See Exhibit A).
10. Julianna Barber was born on September 8, 1989. She turned 15 on September 8, 2004. (Second Amended Complaint at ¶ 23).
11. One month after her fifteenth birthday, on October 13, 2004, Julianna Barber obtained a minor’s instruction permit. She completed a driver’s education course on October 23, 2004. (Second Amended Complaint at ¶ 25; Exhibit B, Deposition of Julianna Barber at p. 23, l. 8).
12. In late October or early November of 2004, Marcia Barber inquired if Julianna could be permitted to drive with her grandfather, a licensed driver, until Julianna turned 16 years of age. She was ultimately referred to Steve Tool, who at that time was the Senior Director of the Colorado Division of Motor Vehicles. (Exhibit C, Deposition of Marcia Barber at p. 32, ll. 11-20).
4

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13. Mr. Tool investigated the issue. All of Marcia Barber’s interactions with Mr. Tool were pleasant and professional. Marcia Barber admits that Mr. Tool was very supportive and understood her issues. Marcia Barber never spoke with or had any interaction with Michael Cooke. (Exhibit C, Deposition of Marcia Barber at p. 45, ll. 2-25; p. 46, ll. 1-18).
14. Marcia Barber admits that Steve Tool could not simply disregard the statute and allow Julianna’s grandfather to supervise because “his hands were tied” as a result of the statutory language. (Exhibit C Marcia Barber Deposition at p. 45, ll. 14-23; Exhibit D, Deposition of Steve Tool at p. 22, ll. 15-20). However, he was very interested in finding a solution and sought guidance from the Colorado Attorney General’s Office and further inquired into amending the statute at issue to accommodate all parents who do not have a driver’s license. (Exhibit D, Deposition of Steve Tool at p. 28, ll. 7-13).
15. Marcia Barber’s request was initially denied because the state statute only permitted a licensed parent, stepparent, or guardian to supervise a minor’s driving. (Exhibit D, Deposition of Steve Tool at p. 33, ll. 21-25). The only reason her request was denied was because of the express statutory language. (Exhibit D, Deposition of Steve Tool at p. 34, ll. 1-3).
16. Marcia Barber admits that Tool was very interested in finding a solution. (Exhibit C Marcia Barber Deposition at p. 46, ll. 1-3; p. 63). Along these lines Marcia Barber was advised that as a result of her inquiries, the statute at issue was in the process of being amended (Exhibit C Marcia Barber Deposition at p. 46, ll. 2-7).
17. Approximately two months after her discussion with Steve Tool, in January of 2005, Marcia Barber called the Colorado Attorney General, John Suthers, to discuss the
5

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issue. Mr. Suthers advised Marcia Barber that it was pretty clear that this was a legislative oversight and that the statute should be changed. At that point Marcia Barber advised Suthers that amendment of the statute was already in the works. (Exhibit E, Deposition of John Suthers at pp. 17-18).
18. In addition to the long term solution of the amendment of the statute, they discussed the immediate issue of Julianna. Mr. Suthers advised Marcia Barber that he was certain that he could assist her in solving her immediate situation until the law was changed. (Exhibit E, Deposition of John Suthers at pp. 17, 21; p. 28, ll. 15-25; p. 29, ll. 19; pp. 30-31).
19. Specifically, Mr. Suthers discussed with Marcia Barber the possibility of signing or drafting some sort of document or limited delegation of authority that would comply with the spirit of the statute to allow Marcia Barber’s father to supervise the driving until such time as the statute was amended. (Exhibit E, Deposition of John Suthers at 1718, 20, 27-28, 31-32).
20. However, Marcia Barber was unwilling to sign any document whatsoever to allow her father to supervise the driving. (Exhibit C, Deposition of Marcia Barber at p. 51, ll. 5-24; p. 55, ll. 19-25; p. 56, ll. 1-5). She made this point very clear to Mr. Suthers. (Exhibit E, Deposition of John Suthers at pp. 18, 22, 24-25, 26-27, 29, 33-34, 35). Suthers specifically advised Marcia Barber that she would not be relinquishing any parental rights and that they simply needed to come up with some device by which she would designate the grandfather of the child, for purposes of driving with the child, to comply with the statute. (Exhibit E, Deposition of John Suthers at p. 18, ll. 1-18; p. 22, ll. 12-23).
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21. However, it became apparent to Suthers that Marcia Barber was both unwilling to sign any designation or document and that she was not intent on solving the immediate problem, but was in fact setting up a lawsuit. (Exhibit E, Deposition of John Suthers at p. 33, ll. 3-7)
22. Marcia Barber admits that the requirement that an unlicensed parent sign a designation document to allow someone else to supervise the driving was a requirement that any unlicensed parent would have to meet whether or not they were disabled (Exhibit C, Deposition of Marcia Barber at p. 66, ll. 5-16). Additionally, Julianna admits that because her mother is required to sign an affidavit of financial responsibility it was important that the parent maintain some control as to who supervises the driving and designate in writing who could supervise the driving. (Exhibit B, Deposition of Julianna Barber at 33-34).
23. As a result of Marcia Barber’s inquiries, and the efforts of the Defendants, effective July 1, 2005, the Colorado Legislature amended the above referenced statute. A minor driver under the age of 16, who obtained an instruction permit was entitled to drive under the supervision of the parent, stepparent, grandparent with power of attorney, or guardian who holds a valid driver’s license. (See Exhibit F, Amended Colo. Rev. Stat. § 42-2-106(b) effective July 1, 2005).
24. The Department of Motor Vehicles was both involved in and in favor of making this legislative change as a result of Plaintiffs’ requests. (Exhibit D, Deposition of Steve Tool at pp. 11-13).
25. The Colorado Legislature again amended the referenced statute to add: “If the parent, stepparent, grandparent with power of attorney, or guardian or foster parent,
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who signed the affidavit of liability pursuant to section 42-2-108(1)(a), does not hold a valid Colorado driver's license, the parent, stepparent, grandparent with power of attorney, or guardian or foster parent may appoint an alternate permit supervisor. An alternate permit supervisor shall hold a valid Colorado driver's license and be twenty-one years of age or older.” The Department of Motor Vehicles suggested and supported this amendment. (Exhibit D, Tool Deposition at p. 33, ll. 2-20).
26. Marcia Barber testified in her deposition that she was very pleased with the statutory changes and stated “that’s all I ever wanted.” (Exhibit C, Marcia Barber Deposition at p. 75, ll. 5-9).
27. In order to be qualified to get her driver’s license, Julianna needed to have a permit for 1 year, and during that year acquire 50 hours of behind the wheel experience. Thus, the earliest date she could have acquired her license was one year after receiving her permit on October 13, 2005. (Exhibit B, Julianna Barber Deposition at p. 25, ll. 15-25; p. 26, ll. 9-17).
28. Julianna acquired her 50 hours of driving experience in one year and one month. Julianna took the test to obtain her driver’s license in November 10, 2005, and obtained her license on November 14, 2005. (Exhibit B, Julianna Barber Deposition at p. 40, ll. 15-24; Exhibit H, License).
30. After obtaining her permit, Julianna acquired her 50 hours of driving experience and practiced her driving and logged hours in October and November of 2004 immediately after she obtained her permit. She logged the other hours in May, June, July, August, September, October and November of 2005. (Exhibit I, Log Sheet; Exhibit B, Julianna Barber Deposition at p. 46, ll. 13-24).
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31. The statute allowing a permitted minor driver to drive with a grandparent with power of attorney went into effect on July 1, 2005. Although Marcia Barber did not want to sign a power of attorney, she signed a designation pursuant to amended statute on August 10, 2005, designating Julianna’s grandfather to supervise, thus delaying the ability of the grandfather to supervise for one month. (Exhibit J, Designation; Exhibit B, Julianna Barber Deposition. p 32, ll. 4-25). There was enough time for Julianna’s grandfather to supervise the driving for Julianna to get her license within a year after getting her permit, as required by law of all 15 year olds. (Exhibit J, Designation Form; Exhibit C Marcia Barber Deposition at pp. 66-67).
32. After the change in the statute, two days after her last driving session with her driving instructor, Julianna began to drive with her grandfather. (Exhibit B, Julianna Barber Deposition at p. 31; Exhibit I, Log Sheet).
33. Julianna was not eligible to obtain her license when she turned 16, because she received her permit 1 month after her fifteenth birthday, and was required to have such permit for 1 year before receiving a license. Pursuant to statute, however, after she turned 16, Julianna could practice her driving with any licensed driver over 21 years of age. Three days after her last driving session with grandfather on October 2, 2005, she began driving with Barry Wick, a friend of her mothers. ( Exhibit B, Julianna Barber Deposition at p. 36, l. 25; p. 37, ll. 1-14; Exhibit I, Log Sheet).
34. She completed her 50 hours and took her final drivers test for obtaining her license on November 10, 2005. She received her license on November 14, 2005, approximately thirteen months after obtaining her learner’s permit. (Exhibit H, License; Exhibit B, Julianna Barber Deposition p. 38-39).
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35. Julianna admits that she was not discriminated against. (Barber v. State, 2006 WL 213970 at *1; Exhibit B, Julianna Barber Deposition at p. 45, ll. 13-21).
36. Julianna admits that the Defendants were not purposefully trying to discriminate against the disabled and that the issue resulted from a legislative oversight and that the law was appropriately changed (Exhibit B, Julianna Barber Deposition at p. 49, ll. 5-18).
37. Julianna admits she has not sustained any damages whatsoever. (Exhibit B, Julianna Barber Deposition at p. 47, ll. 1-25; p. 48, ll. 1-3; p. 50, ll. 20-23).
38. Marcia Barber has not seen any psychologists, social workers or counselors and has not taken any medications for anything related to anxiety or emotional distress as a result of this incident. (Exhibit D, Marcia Barber Deposition at p. 43, ll. 13-19).
STANDARDS FOR SUMMARY JUDGMENT Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In response to a motion for summary judgment, the burden shifts to the party opposing the motion to produce factual evidence, not mere allegation or argument, to show a triable issue of facts exists. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). The party opposing the motion must show specific facts in an affidavit, discovery response, or other document sworn under penalty of perjury showing the need for trial. Burk v. K Mart Corp., 956 F.2d 213, 215 (10th Cir. 1991); Handy v. Price, 996 F.2d 1064, 1066 (10th Cir. 1993).
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ARGUMENT

I. Elements of Plaintiffs’ Claim for Compensatory Damages under the Rehabilitation Act.

Section 504 of the Rehabilitation Act states: "No otherwise qualified individual with

a disability ... shall, solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a). Thus,

the four elements of a prima facie claim under the Rehabilitation Act are: (1) that the

plaintiff is disabled under the Act; (2) that she would be "otherwise qualified" to participate

in the program; (3) that the program receives federal financial assistance; and (4) that the

program has discriminated against the plaintiff. Schrader v. Fred A. Ray, M.D., P.C., 296

F.3d 968, 971 (10th Cir.2002); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151

(10th Cir.1999); McGeshick v. Principi 357 F.3d 1146, 1150 (10th Cir. 2004). Additionally,

because all claims except Plaintiffs’ claims for compensatory damages under the

Rehabilitation Act were dismissed, Plaintiffs must prove intentional discrimination in order

to recover compensatory damages. Powers v. MJB Acquisition Corp., 184 F.3d 1147

(compensatory damages not available under section 504 of the Rehabilitation Act unless

intentional discrimination); Tyler v. City of Manhattan, 118 F.3d 1400 (10th Cir.1997)

(compensatory damages for mental and emotional injury not available under ADA absent

intentional discrimination).

II. Plaintiffs Fail to Meet the Elements Necessary to Sustain a Rehabilitation Act Claim for Damages.

A.

The 2004 Statute Provided Marcia Barber with an Appropriate Avenue

to Designate an Alternate to Supervise her Daughter’s Driving.

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A facially neutral governmental restriction does not deny "meaningful access" to the
disabled simply because disabled persons are more likely to be affected by it. Patton v. TIC
United Corp. 77 F.3d 1235, 1246 (10th Cir. 1996) citing Alexander v. Choate, 469 U.S. 287,
303-04 (1985) (holding that a ceiling on the number of inpatient hospital days paid for by
Tennessee's Medicaid program did not deny the disabled meaningful access to Medicaid
services). Moreover, the Rehabilitation Act does not require state officials to perceive of
every possible scenario when a regulation might impact the disabled.
At the same time, the position urged by respondents--that we interpret § 504 to reach all action disparately affecting the handicapped--is also troubling. Because the handicapped typically are not similarly situated to the nonhandicapped, respondents' position would in essence require each recipient of federal funds first to evaluate the effect on the handicapped of every proposed action that might touch the interests of the handicapped, and then to consider alternatives for achieving the same objectives with less severe disadvantage to the handicapped. The formalization and policing of this process could lead to a wholly unwieldy administrative and adjudicative burden….. Had Congress intended § 504 to be a National Environmental Policy Act for the handicapped, requiring the preparation of "Handicapped Impact Statements" before any action was taken by a grantee that affected the handicapped, we would expect some indication of that purpose in the statute or its legislative history. Yet there is nothing to suggest that such was Congress' purpose. Alexander v. Choate 469 U.S. 287. “Section 504 seeks to assure evenhanded treatment
and the opportunity for handicapped individuals to participate in and benefit from programs
receiving federal assistance.” Alexander v. Choate 469 U.S. at 287 citing Southeastern
Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980
(1979)(emphasis added). It does not require the state to evaluate the impact of facially
neutral regulations and determine how they can be implemented in a way most favorable
to the handicapped.
Tennessee's refusal to pursue this course does not, as respondents suggest, inflict a "gratuitous" harm on the handicapped. On the contrary,
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to require that the sort of broad-based distributive decision at issue in this case always be made in the way most favorable, or least disadvantageous, to the handicapped, even when the same benefit is meaningfully and equally offered to them, would be to impose a virtually unworkable requirement… Alexander 469 U.S. 287, 105 S.Ct. at 724. Plaintiffs maintain that Marcia was denied access to the program that allowed her to supervise her daughter’s driving because she was not allowed to designate her father as a supervisor. However, she was not denied access to a governmental benefit. She had the same ability to designate a supervising driver as a non-disabled parent without a license. Marcia Barber always had the authority to designate any licensed driver over 21 of her choosing to supervise her daughter’s driving. Under the former statute, she could have executed a limited guardianship or power of attorney empowering and limiting another individual to supervise the driving. She could have made the appointment without court intervention. See Colo. Rev. Stat. § 15-14-102 (4) (“Guardian” means an individual at least twenty-one years of age, resident or non-resident, who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or by court. The term includes a limited, emergency, and substitute guardian but not a guardian ad litem.”); Colo. Rev. Stat. § 15-14-105 (A parent or guardian of a minor or incapacitated person, by power of attorney, may delegate to another person, for a period not exceeding twelve months, any power regarding care, custody, or property of the minor….); Colo. Rev. Stat. § 15-14-201 (“a person becomes a guardian of a minor by appointment by a parent or guardian by will or written instrument or upon appointment by the court….) (A copy of these statutes is attached as Exhibit K). Thus, the Plaintiffs had, but never exercised, the option of appointing Juliana’s grandfather as a limited guardian solely for the purpose of supervising Juliana’s driving under the previous statute. Indeed, she admits that she never even explored the
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possibility of executing a document that would not relinquish any parental rights, but would instead simply empower another individual to supervise the driving. (Exhibit C at p. 51, ll. 13-17). She never inquired as to whether she could simply file a piece of paper with the Department of Motor Vehicles saying she was giving a limited guardianship for the purpose of supervising her daughter’s driving. (Exhibit C at 55-56, ll. 24-25, ll. 1-5).
The additional requirement of a written instrument is not onerous. See e.g. Theriault v. Flynn 162 F.3d 46 (1st Cir. 1998) (State did not discriminate against motorist with cerebral palsy, in violation of Americans with Disabilities Act, when motorist was required to take road test, not ordinarily required, before driver's license allowing driving with hand controls was renewed); Bailey v. Anderson 79 F.Supp.2d 1254 (D.Kan. 1999) (State did not discriminate against motorist with vision impairment in violation of ADA by requiring her to submit report from driving instructor regarding her driving ability as condition for instruction permit); Briggs v. Walker 88 F.Supp.2d 1196 (D.Kan. 2000) (State director of vehicles did not discriminate against wheelchair restricted applicant for instruction permit to operate vehicle in violation of the ADA, by requiring that applicant submit medical certification as to her ability to operate vehicle safely before permit would be granted).
B. Assuming Arguendo 2004 Statute Discriminated, Defendants Immediately Amended the Statute and Offered Marcia Barber an Appropriate Modification.
It is undisputed that when Marcia Barber raised the issue, the Defendants implemented proceedings to change the statute. The Department of Motor Vehicles took immediate action to support the amendment of the statute to address the legislative oversight. In order to resolve the immediate issue of Julianna’s driving until amendment of the statute, Marcia Barber spoke with the Colorado Attorney General himself. Mr. Suthers
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advised Marcia Barber that he was certain that he could assist her in solving her immediate situation until the law was changed. He discussed with Marcia Barber the possibility of signing or drafting some sort of document or limited delegation of authority that would comply with the spirit of the statute to allow Marcia Barber’s father to supervise the driving until such time as the statute was amended. (Exhibit E, Deposition of John Suthers at 17-18, 20, 27-28, 31-32). However, Marcia Barber admits that she was unwilling to sign any document whatsoever to allow her father to supervise the driving. Indeed, she made this point very clear to Mr. Suthers. (Exhibit C, Deposition of Marcia Barber at p. 51, ll. 5-24; p. 55, ll. 19-25; p. 56, ll. 1-5; Exhibit E, Deposition of Suthers at pp. 18, 22, 24-25, 26-27, 29, 33-34, 35). Suthers specifically advised Marcia Barber that she would not be relinquishing any parental rights and that they simply needed to come up with some device by which she would designate the grandfather of the child, for purposes of driving with the child, to comply with the statute. (Exhibit E, Deposition of Suthers at p. 18, ll. 1-18; p. 22, ll. 12-23). Thus, it is undisputed that Plaintiffs were offered accommodations relating to the 2004 statute. Despite acknowledging that it was important that such accommodation be in writing, they refused to sign any document whatsoever to facilitate the requested accommodation until August of 2005 when Marcia Barber executed a document allowing her father to supervise Julianna’s driving.
The Defendants remained willing to make accommodations to address the immediate driving question while they worked to get the statute amended. Even the Colorado Attorney General himself indicated that Marcia Barber could sign a very limited document rather than go through a formal guardianship process in order to allow an alternate to supervise the driving.
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III. Plaintiff’s Claim for Compensatory Damages under the Rehabilitation Act Fails because they have failed to Produce any Evidence of Intentional Discrimination and they Acknowledge that there was no Intentional Discrimination.
A plaintiff cannot obtain compensatory damages from the state under the Rehabilitation Act without showing intentional discrimination. Powers v. MJB Acquisition Corp., 184 F. 3d at 1153 (entitlement to compensatory damages under § 504 of the Rehabilitation Act requires proof of intentional discrimination). Plaintiffs admit no intentional discrimination occurred. Thus, their remaining claim for damages fails. Tyler v. Manhattan, 118 F.3d at 1402-03. In Tyler, after concluding that a plaintiff must demonstrate intentional discrimination to recover compensatory damages under the Rehabilitation Act, the Tenth Circuit affirmed the dismissal of a claim for compensatory damages under the ADA because the plaintiff merely alleged acts that had a disparate impact upon the disabled.
We have reviewed the pretrial order and agree with the district court that the order does not describe acts of intentional wrongdoing. Instead, it is apparent that the order describes acts and omissions which have a disparate impact on disabled persons in general but not specific acts of intentional discrimination against Tyler in particular. Furthermore, there are no allegations in the pretrial order that the City was motivated by animus toward the disabled generally or Tyler specifically. Tyler v. City of Manhattan 118 F.3d at 1403. Similarly, in this case there is a complete absence of any evidence of intentional discrimination. Indeed, Plaintiffs concede that the gravamen of their claim is based upon a theory of disparate impact. (See Plaintiffs’ Memorandum in Response to Defendants’ Motion to Dismiss, Docket # 17, at pp. 4, 5, 8). While this theory was sufficient to avoid dismissal of Plaintiff’s claims for injunctive relief, it is insufficient here, in the complete absence of any evidence supporting a claim for intentional discrimination.
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Both Plaintiffs concede that the 2004 statute was a mere legislative oversight, and there was no intent to discriminate against the disabled. Moreover, the Defendants undertook extraordinary efforts to change the statute prior to Julianna’s sixteenth birthday. Effective July 1, 2005, the statute was amended to permit a minor driver under 16, who has a minor’s instruction permit, to accumulate driving experience under the supervision of a licensed “grandparent with power of attorney.” Prior to the statutory change, Defendants undertook efforts to accommodate Plaintiffs until the statute was changed. The Senior Director of the Colorado Division of Motor Vehicles investigated the issue. Marcia Barber admits that he was very supportive and understood her issues and pursued an amendment to the statute. She further admits that he could not simply disregard the statute and allow Julianna’s grandfather to supervise because “his hands were tied” as a result of the statutory language. Far from intentionally discriminating, or being deliberately indifferent to her, he did everything he could to accommodate her situation.
Approximately two months after her discussion with Steve Tool, in January of 2005, Marcia Barber called the Colorado Attorney General, John Suthers to discuss the issue. Mr. Suthers advised Marcia Barber that it was pretty clear that this was a legislative oversight and that the statute should be changed and that he was certain that he could assist her in solving her immediate situation until the law was changed. He discussed with her the possibility of signing or drafting some sort of document or limited delegation of authority that would comply with the spirit of the statute to allow Marcia Barber’s father to supervise the driving until such time as the statute was amended. However, Marcia Barber admits that she was unwilling to sign any document whatsoever. The admissions of the Plaintiffs as well as the efforts on behalf of the Defendants to reasonably
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accommodate Marcia Barber belie any claim of intentional discrimination or deliberate indifference. IV. Plaintiffs Admit They have not Sustained any Damages.
Rule 56 "mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322. Even assuming arguendo that Plaintiffs could prove an intentional violation of the Rehabilitation Act, this in and of itself does not entitle them to an award of compensatory damages.
Consequently, we hold that damages liability under section [the ADA] must be based on something more than a mere violation of that provision. There must be some cognizable injury in fact of which the violation is a legal and proximate cause for damages to arise from a single violation. Armstrong v. Turner Industries, Inc. 141 F.3d 554, 562 (5th Cir. 1998). "Compensatory damages are such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury. Damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him." Black's Law Dictionary 390 (6th ed.1990). Here, plaintiffs admit no cognizable injury exists. Marcia Barber testified in her deposition that she was very pleased with the statutory changes and stated “that’s all I ever wanted.” (Exhibit C at p. 75, ll. 3-9). Julianna admits she has not sustained any damages whatsoever. Marcia Barber is claiming emotional distress damages but she has not seen any psychologists, social workers or counselors and has not taken any medications for anything related to anxiety or emotional distress as a result of this incident.
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Thus, even assuming arguendo that Plaintiffs could muster the evidence to prove a violation of the Rehabilitation Act, they admittedly sustained no damage whatsoever.
The only possible damage is the one month delay in obtaining Julianna’s license and the allegation that she had to compress her driving experience into a few months and did not get driving experience in a full range of road conditions. However, the evidentiary record reveals that the Defendants’ efforts permitted Julianna to receive her license in a timely manner. Julianna needed to have a permit for 1 year, and during that year acquire 50 hours of behind the wheel experience. Thus, the earliest date she could have acquired her license was one year after receiving her permit, October 13, 2005. She practiced her driving with various people, including her grandfather, during nine of the thirteen months between receiving her permit and getting her license. She acquired her 50 hours of driving experience in one year and one month from the date she obtained her permit and obtained her driver’s license on November 14, 2005, one month after she was eligible.
CONCLUSION For the reasons set forth above, Plaintiffs’ Second Amended Complaint should be dismissed.
JOHN W. SUTHERS Attorney General
/s/ James X. Quinn ELIZABETH H. McCANN* Deputy Attorney General JAMES X. QUINN* Assistant Attorney General Civil Litigation and Employment Law Section 1525 Sherman Street, 5th Floor Denver, Colorado 80203, Telephone:(303) 866-4307 *Counsel of Record
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CERTIFICATE OF SERVICE

I certify that on November 8, 2006, I electronically filed the foregoing with the Clerk of

Court using the CM/ECF system which will send notification of such filing to the following e-

mail addresses:

Amy F. Robertson arob@foxrob.com

Kevin W. Williams kwilliams@ccdconline.org

/s/ James X. Quinn

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 </s> Case 1:05-cv-00807-REB-CBS Document 65 Filed 11/28/2006 Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-00807-REB-CBS JULIANNA BARBER, by and through her next friend, MARCIA BARBER, et al.,
Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE, et al.,
Defendants.
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiffs, by and through their attorneys, hereby submit their Memorandum in Opposition to Defendants’ Motion for Summary Judgment.
Defendants’ motion is without merit because: ! The central question -- whether Defendants ever offered Plaintiff Marcia
Barber a reasonable accommodation -- is sharply disputed; ! The disputed and undisputed evidence that Defendants rejected Ms.
Barber’s request for a reasonable accommodation demonstrates intentional conduct, entitling Plaintiffs to compensatory damages; and ! Plaintiffs’ damages constitute disputed issues of material fact. Because granting Defendants’ Motion for Summary Judgment would require this Court to make credibility determinations among witnesses and resolve disputed questions of fact, Plaintiffs respectfully request that it be denied.

Case 1:05-cv-00807-REB-CBS Document 65 Filed 11/28/2006 Page 2 of 21
FACTS 1. Plaintiff Julianna Barber (“Julianna”) turned 15 on September 8, 2004. (Stipulations ¶ 5 (Ex. 1 hereto).) On or about October 13, 2004, Julianna obtained a minor’s instruction permit under C.R.S. § 42-2-106(b) and completed a driver education course on October 23, 2004. (Id. ¶ 18.) 2. Pursuant to Colorado law in effect at that time, Julianna could drive, but only under the supervision of a parent, stepparent, or guardian if such individual held a valid driver’s license. C.R.S. § 42-2-106(b) (2004). 3. However, Julianna’s mother, Marcia Barber (“Ms. Barber”) is legally blind and, as a result, does not have a driver’s license. (Stipulations ¶¶ 1, 7.) Ms. Barber has full custody of Julianna; Julianna’s father lives out of state. (Id. ¶¶ 2-4.) As a result, Ms. Barber requested the reasonable accommodation that Julianna be allowed to practice driving with another licensed driver, such as her grandfather. Ms. Barber was directed to call Steve Tool, then the Senior Director for the Colorado Division of Motor Vehicles. (M. Barber Dep. at 32 (Ex. 2 hereto); Stipulations ¶ 14.) 4. Ms. Barber explained her situation to Mr. Tool and asked that her father (Julianna’s grandfather) be allowed to be the supervising licensed driver for purposes of section 42-2-106(b). (Tool Dep. at 18-19 (Ex. 3 hereto).) 5. Mr. Tool sought guidance from Robert Dodd, an attorney with the Attorney General’s office. Specifically, Mr. Tool asked whether Ms. Barber’s father could be considered a “guardian” for purposes of section 42-2-106(b). (Id. at 14-15; 18-19.) 6. Mr. Dodd provided a memo to Mr. Tool with his office’s interpretation of
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the word “guardian” as used in that section. Although Defendants have withheld the memo as privileged, Mr. Tool quoted portions of the memo in a letter (the “Tool Letter,” Ex. 4 hereto) to Ms. Barber dated November 22, 2004. (Tool Dep. at 16, 17, 19.) The Tool Letter – which is not mentioned in Defendants’ brief – states:
The term “guardian” is defined in Black's Law Dictionary as “a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status or defect of age, understanding of self-control, is considered incapable of administering his own affairs.” In addition, it includes “one who legally has the care and management of the person, or the estate, or both of a child during its minority.” (Id. at 1.) Based on this definition, Mr. Tool denied Ms. Barber’s request that her father be allowed to supervise for purposes of section 42-2-106(b). (Id.; Tool Dep. at 19.) 7. In response, Ms. Barber wrote Mr. Tool and asked that, as an accommodation, an exception be made to the literal requirements of section 42-2106(b), permitting another licensed driver over the age of 21 to supervise Julianna’s driving. (Tool Dep. at 20-22, Ex. P-2.) Mr. Tool understood Ms. Barber to be requesting a reasonable modification under the ADA and believed the request was reasonable. (Id. at 22.) 8. Mr. Tool again consulted Mr. Dodd. Although Defendants have asserted a privilege as to the substance of that call, the result was that Mr. Tool contacted Ms. Barber “and informed her that this accommodation could not be made.” (Id. at 22-23.) 9. In January 2005, after her request for an accommodation had been denied twice, Ms. Barber called John Suthers, the Attorney General of Colorado. Ms. Barber and Mr. Suthers had attended the same high school, and Ms. Barber left him a
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phone message, which he returned. (M. Barber Dep. at 47.) 10. What was said during this telephone call is in considerable dispute. Ms.
Barber testified, “I explained the situation to [Mr. Suthers] and asked for a reasonable accommodation under the ADA, and was informed that the ADA didn’t apply to statutes, and that because I was not a licensed driver, my daughter would not be allowed to drive unless I was willing to assign guardianship.” She does not recall that Mr. Suthers made any further comments about trying to solve the problem. (Id. at 47-48.)
11. Defendants assert that Mr. Suthers offered Ms. Barber the option of signing a limited delegation of authority that would not relinquish parental rights. (Mem. Br. in Support of Defs.’ Mot. for Summ. J. (“Defs.’ Br.”) at 6.) Ms. Barber denies that Mr. Suthers made this offer. (M. Barber Dep. at 47-48; M. Barber Decl. ¶¶ 3-5 (Ex. 5 hereto).) Mr. Suthers’s deposition testimony also contradicts Defendants’ assertion. For example, he testified, “I believed that we could work this out by having a guardian take that responsibility, and it could be the father.” (Suthers Dep. at 27 (Ex. 6 hereto); see also id. at 20, 23-24.)1 Mr. Suthers also testified that he was familiar with the steps necessary to create a formal guardianship and that he did not “know of a guardianship, a true guardianship, other than a formal guardianship.” (Id. at 10-11.)
12. Following the telephone call with Mr. Suthers, Ms. Barber sent him two letters dated January 21 and 25, 2005, respectively. In the second letter, she made clear that her request was to “[a]llow[ ] [her daughter] to drive with a parent-delegate such as an uncle or grandfather.” Mr. Suthers received both letters but did not respond

1

Reference to any type of guardianship contradicts Defendants’ assertion

that Ms. Barber would not have had to relinquish parental rights. See infra note 4.

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to either one. (Id. at 15, 21, 34, Exs. P-3, P-4.) 13. On February 3, 2005, attorney Chris Méndez of the Legal Center for
People with Disabilities and Older People sent a letter to Mr. Dodd explaining the legal basis for Ms. Barber’s request. (Stipulations ¶¶ 24-25.)
14. Mr. Dodd’s February 23, 2005 letter in response -- the “Dodd Letter” -says nothing about the solution Mr. Suthers claims he offered only one month earlier. (Stipulations ¶ 26, Ex. 7 hereto.) Rather, Mr. Dodd unequivocally states that, under section 42-2-106(b), “it is critical that [young drivers] be under the direct and immediate supervision of someone with full parental authority.” (Dodd Letter at 1 (emphasis added).) Like the Tool Letter, the Dodd Letter is not mentioned in Defendants’ Brief.
15. Mr. Dodd wrote the Dodd Letter after talking with Mr. Suthers about his call with Ms. Barber. (Suthers Dep. at 33.) At his deposition, Mr. Suthers reviewed the Dodd Letter and testified that he agreed with it. (Id. at 38.)
16. In August, 2005, Defendants finally permitted Ms. Barber to designate her father to supervise Julianna’s driving pursuant to C.R.S. § 42-2-106(b) without relinquishing any parental rights. (Defs.’ Br. Ex. J.) Ms. Barber would have been willing, starting in October, 2004, to sign such a document. (M. Barber Decl. ¶ 6.)
17. Julianna was able to practice driving for eleven and a half hours between October, 2004 and August, 2005: five and a half hours with a driving instructor in October and November of 2004, and six hours donated by the National Driver Training Institute in May through August, 2005. She was unable to practice during the six months between November, 2004, and May, 2005. (See Defs.’ Br. Ex. I.)
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18. If the state had granted Ms. Barber’s request for reasonable modification when she first made it in late October or early November, 2004, Julianna would have been able to practice driving with her grandfather starting then. Julianna estimates that she missed out on at least one hundred hours of driving practice between November, 2004, and August, 2005. (J. Barber Decl. ¶ 5.)
19. Plaintiff Marcia Barber testified to the injuries resulting from Defendants’ discrimination. For example, she felt “kicked in the teeth . . . flabbergasted. . . . like somebody pulling the rug out from underneath your feet. . . . This was the first time in my life that my parenting ability was called into question because of my disability. It was very painful.” (M. Barber Dep. at 42-43.) She explained, “the undermining of my confidence, of my parenting abilities, the humiliation over not being able to afford my daughter a normal opportunity, the awareness that the ADA does not protect me, that legislators are unaware of the ADA, don’t have to comply with the ADA . . . turned my world upside down . . .. I’ve worked really, really hard to compensate for my disability and to make sure that my children are not disadvantaged because of my disability, and it was the first time that I wasn’t able to get the help that I needed. It was very scary.” (Id. at 74; see also id. at 55.)
20. Julianna testified that she was frustrated by the fact that she was unable to practice driving, and angry at the way her mother was treated and the fact that this discrimination meant that she missed out on driving practice. (J. Barber Decl. ¶¶ 2-3.)
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Argument I. Standard of Review
Summary judgment can be granted only where “there is no genuine issue 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). Summary judgment may enter only where no reasonable trier of fact could find for the non-moving party. See Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Defendants, as the moving parties, have the burden of showing that no genuine issues of material fact exist; “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
Plaintiffs agree that the case currently consists only of Marcia and Julianna Barber’s claims for compensatory damages under the Rehabilitation Act. 29 U.S.C. § 794. Discrimination under the Rehabilitation Act includes failure to make reasonable accommodations. Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857 (10th Cir. 2003). This is the only theory on which Plaintiffs proceed; as set forth in a pleading filed December 9, 2005, they no longer proceed on a theory of disparate impact. (Pls.’ Reply Br. in Support of Mot. to Reconsider at 2 n.2.) II. Elements.
Plaintiffs agree with the elements as recited by Defendants. (See Defs.’ Br. at 11.) Only the fourth element -- whether “the program has discriminated against the plaintiff” -- is in dispute. Defendants have stipulated to the first and third elements: that Ms. Barber is disabled; and that both the Department of Revenue and the Division of Motor Vehicles receive federal financial assistance. (Stipulations ¶¶ 1, 15.) Their brief
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does not challenge the second element -- that Ms. Barber is “otherwise qualified” to participate in the program -- and this Court has held that, if Ms. Barber had been granted the requested accommodation, she would have been able to participate in the program. Ord. Granting in Part and Den. in Part Defs.’ Mot. to Dismiss at 4-5.
Thus, the only element in dispute is whether Defendants discriminated against Ms. Barber by denying her request for a reasonable accommodation.
Defendants also challenge Plaintiffs’ damages claims. Plaintiffs agree that they must prove intentional conduct to recover damages under the Rehabilitation Act; such conduct includes “deliberate indifference to the strong likelihood that pursuit of [Defendants’] questioned policies will likely result in a violation of federally protected rights.” Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1152-53 (10th Cir. 1999). III. The Accommodation Requested by Ms. Barber was Reasonable.
There is no dispute that the accommodation requested by Ms. Barber was reasonable. Mr. Tool testified that he believed Ms. Barber's request was reasonable (Tool Dep. at 22), and Mr. Suthers thought that it was “a clear oversight” to limit the supervision requirements under section 42-2-106(b) to licensed parents, stepparents or guardians. (Suthers Dep. at 27.) Indeed, granting this reasonable accommodation in late October or early November, 2004 -- when Ms. Barber first made the request -would have furthered the goals of the Colorado General Assembly in ensuring that drivers between the ages of 15 and 16 get as much supervised driving practice as possible. See Colo. Laws 1999 ch. 334, sec. 1(c) & (d); C.R.S. § 42-2-105.5.
The Defendants do not argue that the accommodation sought by Ms. Barber was
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unreasonable. At the very least, whether a requested accommodation is reasonable is a question of fact for the jury. See, e.g., Williams v. Philadelphia Housing Auth. Police Dep’t, 380 F.3d 751, 771(3d Cir. 2004) (“[T]he question of whether a proposed accommodation is reasonable is a question of fact.” (Citations omitted.)). IV. The Only Option Defendants Offered Ms. Barber was To Assign Full
Guardianship of Julianna to Her Father. Defendants’ motion for summary judgment as to liability turns entirely on two factual assertions: (1) that they offered Ms. Barber the option of designating her father to supervise Julianna’s driving without relinquishing parental rights (Defs.’ Br. at 13, 15); and (2) that Ms. Barber was unwilling to sign any document whatsoever. (Id. at 13, 15.) Both of these assertions are sharply disputed -- by evidence that includes two crucial letters from Defendants that Defendants omitted completely from their motion. Defendants’ motion for summary judgment must therefore fail. A. The Undisputed and Disputed Evidence Establishes that Defendants
Insisted Ms. Barber Assign to her Father Full Guardianship Of Julianna As a Condition of Permitting Him to Supervise Her Driving. Defendants assert that Ms. Barber could have, consistent with the 2004 version of section 42-2-106(b), appointed someone in a limited role to supervise Julianna’s driving. (Defs.’ Br. at 13.) This represents a complete, post-lawsuit, change in position by the Defendants. At the time that Ms. Barber requested that she be allowed to designate another licensed driver to supervise Julianna's driving, Defendants -- on four separate occasions -- unequivocally stated that section 42-2-106(b) required supervision by a full guardian with full parental authority over Julianna.
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1. The Tool Letter Required Full Guardianship. In November 2004, in response to Ms. Barber’s request for a reasonable accommodation, Mr. Tool asked the Attorney General's office for its interpretation of the word "guardian" as used in section 42-2-106(b), hoping that a grandparent could “fit under that category.” (Tool Dep. at 19.) The response was “that the answer is ‘no, unless the grandparent is also a legally appointed guardian,’” and that a “guardian" was strictly limited to a person "lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person." (Tool Letter at 1.) This is directly contrary to Defendants' current contention that they would have permitted supervision by someone whose powers were limited to supervising Julianna's driving.
2. The Attorney General, through Mr. Tool, Made Clear That No Accommodation Could Be Made in the Requirement of Full Guardianship.
In response to the Tool Letter, Ms. Barber asked Mr. Tool to inquire whether, notwithstanding the literal requirement of a “guardian” in section 42-2-106(b) and as defined in the Tool Letter, an accommodation could be made so that Julianna's grandfather could supervise her driving. Mr. Tool consulted with the Attorney General’s office and “informed [Ms. Barber] that this accommodation could not be made.” (Tool Dep. at 23.) Again, this is completely contrary to Defendants' current position that they would have permitted someone to act in a more limited or informal role.
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3. Mr. Suthers -- in His Phone Call with Ms. Barber -- Stated That She Would Have to Assign Guardianship.
The only evidence supporting Defendants’ assertion that they offered Ms. Barber the accommodation of designating someone without relinquishing parental rights is Mr. Suthers’s account of his telephone call with Ms. Barber in January 2005.2 However, Ms. Barber disputes that account, and specifically disputes that Mr. Suthers told her that she could make any sort of limited designation. Mr. Suthers told Ms. Barber that “the ADA didn’t apply to statutes, and that because [she] was not a licensed driver, [her] daughter would not be allowed to drive unless [she] was willing to assign guardianship.” (M. Barber Dep. at 47-48.) In light of Ms. Barber’s testimony and the evidence that the Attorney General's office had repeatedly interpreted section 42-2-106(b) as requiring a full guardianship with full parental authority, a jury could rationally find that Mr. Suthers did not tell Ms. Barber that a limited designation was possible during the January 2005 call. Such a finding would also be supported by justifiable inferences from the letters Ms. Barber wrote to Mr. Suthers, repeating her request to delegate her father, and from the fact that Mr. Suthers did not respond to either letter to state his alleged offer in writing. (See Suthers Dep. at 15, 21, 34, Exs. P-3, P-4.)
Because Ms. Barber disputes Mr. Suthers’s version of the phone call, finding that Mr. Suthers in fact offered limited guardianship or designation would require credibility determinations and factual findings that are inappropriate on summary judgment.

2

A number of passages in Mr. Suthers’s deposition contradict the

statements in Defendants’ brief that he proposed a designation that did not involve

relinquishing parental rights. For example, he testified that, “I believed that we could

work this out by having a guardian take that responsibility, and it could be the father.”

Suthers Dep. at 27.

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4. The Dodd Letter Required Supervision by Someone with “Full Parental Authority.”
The Dodd Letter confirmed to Ms. Barber what the Tool Letter and the Suthers phone call had already conveyed: that Defendants were insisting she assign full guardianship if her father were to supervise Julianna’s driving. The Dodd Letter stated that Defendants would only permit someone with "full parental authority" to supervise Julianna's driving. (Id. at 1.) This letter – and the fact that Mr. Suthers agreed with the statements in that letter (see Suthers Dep. at 38) – also permits the justifiable inference – which must be drawn in Plaintiffs’ favor – that Mr. Suthers insisted on guardianship with “full parental authority” in his phone call with Ms. Barber.
B. There Is No Evidence that Defendants Offered -- Or Ms. Barber Refused -- The Option of Designating Her Father in Writing Without Relinquishing Any Parental Rights.
Defendants assert that Ms. Barber would not have signed “any document whatsoever.” (Defs.’ Br. at 15.) In light of the fact that the only option Defendants gave her was to assign full guardianship, this is speculative and irrelevant. It is also incorrect. Ms. Barber was prepared from the start to document in writing the accommodation she requested: designating her father to supervise Julianna’s driving without relinquishing parental rights. (M. Barber Decl. ¶ 6.) Defendants’ assertion is, in any event, not supported by the citations they supply to pages 51, 55 and 56 of Ms. Barber’s deposition. (See Defs.’ Br. at 15.) Rather, this testimony makes clear that Ms. Barber was unwilling to relinquish parental rights, not that she was unwilling to sign “any document whatsoever.” On page 51, Ms. Barber makes clear that she would not “give up other parenting rights in order to designate another individual to supervise driving.”
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(Emphasis added.) On pages 55 and 56, the question posed is whether she explored “fil[ing] a piece of paper saying that [she was] giving a limited guardianship for purposes of supervising [her] daughter’s driving.” (Emphasis added.) At no point does Ms. Barber assert that she was unwilling to sign any document whatsoever; and when Defendants finally permitted her to sign a document designating her father without relinquishing any parental rights, she did so. (M. Barber Decl. ¶ 7.) Again, this entitles her to the inference that she would have signed a similar document in October or November, 2004, had she been permitted to do so. V. Giving up Guardianship -- Full or Limited -- Is Unreasonable and
Defendants Do Not Argue Otherwise. In their Brief, Defendants use the concept of designation without relinquishment of parental rights interchangeably with the concept of limited guardianship.3 These two concepts are not interchangeable; in fact, they are mutually exclusive, as a limited guardianship by definition involves the relinquishment of parental rights.4

3

Compare Defs.’ Br. at 13 (Ms. Barber could have “designate[d] any

licensed driver over 21"), 14 (suggesting she could have “simply empower[ed] another

individual to supervise the driving” in a document that “would not relinquish any parental

rights”), with id. at 13 (“she could have executed a limited guardianship or power of

attorney”), 14 (suggesting she could have “giv[en] limited guardianship for the purpose

of supervising her daughter’s driving”).

4

Colorado statute provides that “a guardian of a minor ward has the

powers of a parent regarding the ward's support, care, education, health, and welfare.”

C.R.S. § 15-14-208(1). Section 15-14-206(2) provides that the court “may limit the

powers of a guardian otherwise granted by this part 2 and thereby create a limited

guardianship.” Although a limited guardianship is, by definition, limited, it still involves

the exercise of some of the “powers of a guardian,” § 15-14-206(2), which are simply

“the powers of a parent.” § 15-14-208(1). Requiring Ms. Barber to assign limited

guardianship to her father would have required her to assign to him some of her powers

as Julianna’s parent.

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As explained above, until August, 2005, Ms. Barber was not offered the option of merely designating her father without relinquishing parental rights, and would have done so -- in writing -- at any time. She was also not offered the option of establishing a limited guardianship. (M. Barber Decl. ¶¶ 3-6.) That option would, however, have been unreasonable, and Defendants do not argue to the contrary.
A. Defendants do Not Attempt to Argue that Giving Up Guardianship -Limited or Full -- Is A Reasonable Accommodation.
Defendants do not attempt to argue that assignment of guardianship -- limited or full -- would have been reasonable. Although they spend several pages asserting that Ms. Barber could have assigned limited guardianship (Defs.’ Br. at 13-15), the only step they defend as reasonable is the execution of a written instrument, not the assignment of parental power. (See id. at 14.) Defendants offer no case law, argument, or other support for the proposition that it would have been reasonable to ask Ms. Barber to give up full or limited guardianship to her daughter to permit the latter to practice driving.
Instead, Defendants assert that “[t]he additional requirement of a written instrument is not onerous” and cite three cases in support. (Defs.’ Br. at 14.) The assertion is irrelevant -- until August, 2005, Defendants insisted on full guardianship, not merely executing a written instrument -- and the three cases Defendants cite do not support their assertion.
None of the three cases relates to the plaintiffs’ execution of a written instrument. Rather, each of the cases involved the imposition of an additional eligibility or testing requirement on a driver with a disability, based on the state’s safety concerns relating to the driver’s disability. Theriault v. Flynn, 162 F.3d 46, 47 (1st Cir. 1998) (state required
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the plaintiff to take an additional road test to demonstrate that his cerebral palsy would not affect his ability to safely drive a car); Bailey v. Anderson, 79 F. Supp. 2d 1254, 1255-56 (D. Kan. 1999) (state required plaintiff to submit a report detailing her ability to drive safely with device designed to correct visual impairments); Briggs v. Walker, 88 F. Supp. 2d 1196 (D. Kan. 2000) (state required plaintiff who used wheelchair to submit completed medical certification before taking driving test).
The present case -- in contrast to the cited cases -- does not involve a disabled driver being required to prove she is a safe driver. Indeed, Defendants do not argue before this Court that section 42-2-106(b)’s limitation to licensed parents, stepparents and guardians was necessary to address safety concerns. The cases Defendants cite on page 14 of their brief are thus irrelevant to the question whether it would have been reasonable to ask Ms. Barber to give up full or limited guardianship of Julianna so that the latter could practice driving.
B. Giving Up Guardianship -- Limited or Full -- Is Not A Reasonable Accommodation.
It is not reasonable to require a mother with a disability to cede all or part of her parental powers in order to ensure that her daughter can practice driving. Title II of the ADA prohibits the imposition of a surcharge on an individual with a disability in connection with the provision of reasonable modifications. 28 C.F.R. § 35.130(f).5 This provision has been held to prohibit a six dollar fee for a disabled parking placard. See

5

The parties have agreed that the standards for interpreting the

Rehabilitation Act are the same as those for interpreting Title II of the Americans with

Disabilities Act. 42 U.S.C. § 12131 et seq. (See Mem. Br. in Support of Defs.’ Mot. to

Dismiss at 5-6 & n.3; Mem. in Opp’n to Defs.’ Mot. to Dismiss at 4.)

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Dare v. Calif., 191 F.3d 1167, 1172 (9th Cir. 1999). It is, of course, far more onerous to require an individual to cede to another power -- even limited power -- over her child to obtain an accommodation so that the child may learn to drive.
The Supreme Court has held that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). These rights include the right of parents “to direct the upbringing and education of children under their control.” Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-535 (1925). It is unreasonable to ask a parent to give up all or part of that control merely to ensure that the State’s goal of providing maximum driving practice between the ages of 15 and 16 is achieved. This is especially true here, where Defendants concede that the accommodation Ms. Barber requested was reasonable. See supra at 8-9. VI. Defendants’ Discussions of The Facial Neutrality of the Statute and The
Circumstances of Nondisabled Unlicensed Drivers Are Not Relevant. Defendants argue that the Rehabilitation Act “does not require the state to evaluate the impact of facially neutral regulations . . ..” (Defs.’ Br. at 12-13 (citing Alexander v. Choate, 469 U.S. 287 (1985), Patton v. TIC United Corp., 77 F.3d 1235 (10th Cir. 1996).)) This argument and both of these cases relate to the theory of disparate impact that Plaintiffs abandoned in a pleading filed almost a year ago and are thus not relevant to the case in its current posture. (See supra at 7.) Defendants also argue that Ms. Barber “had the same ability to designate a supervising driver as a non-disabled parent without a license.” (Defs.’ Br. at 13.) This Court has already rejected this argument. See Order Granting in Part and Denying in
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Part Defendants’ Motion to Dismiss at 4 n.1. Regardless of the situation of nondisabled drivers who may choose not to maintain their license -- or who may have had it revoked by the state -- the Rehabilitation Act requires that, “‘to assure meaningful access, reasonable accommodations in the [Defendants’] program or benefit may have to be made.’” Chaffin, 348 F.3d at 857 (citation omitted). VII. Plaintiffs Have Demonstrated Intentional Conduct Sufficient to Support
their Claim for Compensatory Damages under the Rehabilitation Act. In order to recover compensatory damages under the Rehabilitation Act, Plaintiffs must prove intent. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1152 (10th Cir. 1999). Intent includes “deliberate indifference to the strong likelihood that pursuit of [Defendants’] questioned policies will likely result in a violation of federally protected rights.” Id. at 1153. Plaintiffs have provided undisputed evidence of Defendants’ intentional and/or deliberately indifferent conduct. In the context of a request for reasonable modification,6 intentional conduct occurs when the plaintiff “alerted the public entity to his need for accommodation,” and the defendant’s failure to act was “more than negligent, and involve[d] an element of deliberateness.” Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001); see also Love v. Westville Correctional Ctr., 103 F.3d 558, 560 (7th Cir. 1996) (failure to provide accommodations constitutes intentional discrimination). Here, Ms. Barber’s

6

Most of Defendants’ argument on intent is premised on the incorrect

assertion that “the gravamen of [Plaintiffs’] claim is based upon a theory of disparate

impact.” (Defs.’ Br. at 16.) As noted above, this is incorrect. See supra at 7. The

single case on which Defendants rely was a disparate impact case, so it is not relevant

here. See Tyler v. City of Manhattan, KS, 118 F.3d 1400, 1403 (10th Cir. 1997) (noting

that the case involves “acts and omissions which have a disparate impact on disabled

persons . . .”), quoted in Defs.’ Br. at 16.

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phone calls and letters -- which used the term “accommodation” -- alerted the public entity to her need for an accommodation. Indeed, Mr. Tool testified that he understood her to be requesting such an accommodation. (Tool Dep. at 22.) The undisputed evidence also shows that Defendants knowingly -- rather than negligently -- denied the request: they sent Ms. Barber two letters explicitly denying the request (see Tool Letter; Dodd Letter), Mr. Tool testified that he denied her request, (Tool Dep. at 22-23), and Ms. Barber testified that Mr. Suthers denied her request in their phone call. (M. Barber Dep. at 47-48; M. Barber Decl. ¶ 2-4.) This evidence is more than sufficient to sustain a claim for compensatory damages under the Rehabilitation Act.
In support of their motion as to intent, Defendants again assert that they attempted to accommodate Ms. Barber. The Tool Letter and the Dodd Letter provide documentary evidence that this is not the case: that Defendants in fact directly and explicitly rejected Ms. Barber’s requests. At the very least, Plaintiffs have raised a disputed issue of fact concerning whether Defendants ever offered Ms. Barber a reasonable modification. Summary judgment as to intent is inappropriate where factual disputes exist concerning the extent of accommodations provided in response to a request. See, e.g., Scott v. Garcia, 370 F. Supp. 2d 1056, 1076 (S.D. Cal. 2005) (denying summary judgment where there were disputed issues of fact concerning extent of accommodations provided). VIII. Plaintiffs’ Testimony Concerning the Injuries they Suffered Is Sufficient to
Support their Claim for Compensatory Damages. Defendants also seek summary judgment on the grounds that “Plaintiffs admit no cognizable injury exists.” (Defs.’ Br. at 18.) This is incorrect. Plaintiffs’ testimony
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concerning the effect Defendants’ discrimination had on them is sufficient to demonstrate cognizable injury and thus to defeat Defendants’ motion.
Plaintiff Marcia Barber testified at some length concerning the injuries she suffered, including feeling “kicked in the teeth,” that “it was very painful,” and that it undermined her confidence and caused “humiliation over not being able to afford my daughter a normal opportunity.” (See M. Barber Dep. at 42-43, 55, 74; see also supra at 6.) Julianna Barber testified that it made her frustrated and angry, and that she missed out on at least one hundred hours of driving practice. (J. Barber Decl. ¶¶ 2-5.) It is undisputed that Julianna was unable to practice driving at all from November, 2004 until May, 2005, and was only able to practice for a total of six hours from May to August, 2005. (See Defs.’ Br. Ex. I at 1-2.)
Plaintiffs have provided sufficient evidence to defeat summary judgment and present their claim for emotional distress and other compensatory damages to the jury. The Tenth Circuit has held that “[e]motional distress is an intangible damage, and is an issue of fact within the providence of the jury.” Canady v. J.B. Hunt Transport, Inc., 970 F.2d 710, 715 (10th Cir. 1992). In Hampton v. Dillard Department Stores, Inc., 247 F.3d 1091, 1114-15 (10th Cir. 2001), that court rejected the defendants’ argument that there was no support for a $56,000 emotional distress verdict, holding that the plaintiff’s own testimony that she felt “humiliated and disgraced” and feared ridicule and humiliation while shopping was sufficient to sustain it. See also U.S. v. Balistrieri, 981 F.2d 916, 932-33 (7th Cir. 1992) (holding that an award for emotional distress may be appropriate even where the only direct evidence is the plaintiff’s own testimony and that “[t]he jury is in the best position to evaluate both the humiliation inherent in the
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circumstances and the witness's explanation of his injury.”); Hogue v. MQS Inspection, Inc., 875 F. Supp. 714, 725 (D. Colo. 1995) (denying the defendants’ motion for summary judgment based on the fact that “[the plaintiff] has testified to the existence, nature and severity of emotional distress he states he suffered from [the defendant’s] actions.”).
The one case cited by Defendants, Armstrong v. Turner Indus., 141 F.3d 554 (5th Cir. 1998), is not to the contrary. The Fifth Circuit made clear that “Armstrong has not alleged any actual injury flowing from the alleged [ADA] violation” and that his attorney “seemed to admit that, for this very reason, Armstrong was not entitled to damages relief.” Id. at 561 n.17. In contrast, Plaintiffs here do allege injuries flowing from the alleged ADA violation, and -- as explained above -- have presented sufficient evidence of such injuries to defeat summary judgment.
CONCLUSION For the reasons set forth above, Plaintiffs respectfully request that this Court deny Defendants’ Motion to for Summary Judgment. Respectfully submitted,

s/ Amy Farr Robertson Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700 arob@foxrob.com
Attorneys for Plaintiff
Dated: November 28, 2006

Kevin W. Williams Legal Program Director Carrie Ann Lucas Equal Justice Works Fellow Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775 kwilliams@ccdconline.org
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Certificate of Service
I hereby certify that on November 28, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address:
Elizabeth H. McCann beth.mccann@state.co.us
James X. Quinn james.quinn@state.co.us
Kevin W. Williams kwilliams@ccdconline.org
Carrie Ann Lucas clucas@ccdconline.org
s/ Amy Farr Robertson Amy Farr Robertson Attorney for Plaintiffs Fox & Robertson, PC 910 16th Street Suite 610 Denver, CO 80202 303.595.9700 (voice) 303.595.9705 (fax) arob@foxrob.com

 </s> Case 1:05-cv-00807-REB-CBS Document 66 Filed 12/18/06 USDC Colorado Page 1 of 11
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-807-REB-CBS
JULIANNA BARBER, by and through her next friend, Marcia Barber; and MARCIA BARBER;
Plaintiffs,
v.
STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES; M. MICHAEL COOK, in her official capacity as Executive Director of the Colorado Department of Revenue; and JOAN VECCHI, in her official capacity as Senior Director of the Colorado Division of Motor Vehicles,
Defendants. DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Defendants, through the Colorado Attorney General, respectfully submit the
following Reply in Support of their Motion for Summary Judgment.
I. Plaintiffs’ Claim for Compensatory Damages Fails because they have Failed to Produce any Evidence of Intentional Discrimination.
Plaintiffs concede that they must prove intentional discrimination in order to proceed with the remaining claim. Powers v. MJB Acquisition Corp., 184 F. 3d 1147, 1153 (10th Cir.
1999)(entitlement to compensatory damages under § 504 of the Rehabilitation Act requires
proof of intentional discrimination). Despite having this burden, Plaintiffs failed to produce
any facts that support intentional discrimination. In fact, Marcia Barber repeatedly
commented on the sympathetic reaction of the Director of the Colorado Division of Motor
Vehicles in dealing with her situation.
Q: Were your interactions with Steve Tool pleasant and professional? A: Yes.

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Q: How would you describe his demeanor when he was dealing with you? A: Him personally? Q: Yes. A: He was very sympathetic. Q: What do you mean by that? What led you to believe that he was sympathetic? A: I think that he, out of all of the people that I talked to, understood the crux of the issue and saw the common sense value of offering a reasonable accommodation, but his hands were tied. Q: What do you mean his hands were tied? A: He had to follow the statute and the direction of the Attorney General’s office. They would not allow him to provide a reasonable accommodation. Q: Did he seem genuinely concerned? A: Yes. Q: And did he seem interested in finding a solution? A: Yes.
(See Exhibit C, Deposition of Marcia Barber at pp. 45-46, Attached to Defendants’
Memorandum Brief in Support of Motion for Summary Judgment).1 Moreover, the
Director of the Department of Motor Vehicles unequivocally testified that he had no
intention or desire in any way to discriminate against Marcia Barber. (See Exhibit D, at p.
34). Marcia Barber further admits that she had no contact whatsoever with the other
Defendant in this case, Michael Cooke, the Director of the Colorado Department of
Revenue.
Q: So you did not have any conversation with Michael Cooke?
1 Pursuant to D.C.Colo.LCivR 56.1(C)(3), unless otherwise noted all references to lettered exhibits are attached to Defendants’ Memorandum Brief in Support of Motion for Summary Judgment.
2

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A: No. ( Exhibt C, at p. 46). In addition, Plaintiffs admit that the 2004 statute was a mere legislative oversight, that there was no intent to discriminate against the disabled, and that the State acted promptly in clarifying the statute. The Department of Motor Vehicles was both involved in and in favor of making this legislative change as a result of Plaintiffs’ requests. (Exhibit D, Deposition of Steve Tool at pp. 11-13; Exhibit D, Tool Deposition at p. 33, ll. 2-20; Exhibit C Marcia Barber Deposition at p. 46, ll. 2-7). Marcia Barber testified in her deposition that she was very pleased with the statutory changes and stated “that’s all I ever wanted.” (Exhibit C, Marcia Barber Deposition at p. 75, ll. 5-9). Far from intentionally discriminating, or being deliberately indifferent to Plaintiffs, Defendants did everything they could to accommodate what they understood to be Plaintiffs’ request. Perhaps there was some miscommunication regarding her request. Defendants sought to amend the statute as soon as possible to enable Julianna’s grandfather to supervise her driving. That was what they understood the request for accommodation to be. Accordingly, there is a complete absence of any evidence that the challenged conduct was motivated by “discriminatory animus." See Tyler v. City of Manhattan, 118 F.3d 1400, 1405 (10th Cir.1997) (citations omitted). Moreover, there is a lack of evidence supporting Plaintiff’s conclusory allegation that the Defendants were deliberately indifferent. On the contrary, Defendants took immediate action to clarify the statute as a direct result of Plaintiffs’ situation. In fact, although it was late in the process, they were able to get the statute clarified that very year in such a way that satisfied Plaintiffs in sufficient time so that Julianna Barber could have obtained her driver’s license within a year after getting her permit, as required by law of all 15 year olds. (Exhibit J, Designation Form; Exhibit C Marcia Barber Deposition at pp. 66-67). She received her
3

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license on November 14, 2005, approximately thirteen months after obtaining her learner’s permit. (Exhibit H, License; Exhibit B, Julianna Barber Deposition p. 38-39).
In concluding that a plaintiff must prove intentional discrimination to recover compensatory damages, the Tenth Circuit in Powers relied heavily upon Ferguson v. City of Pheonix, 157 F.3d 668 (9th Cir. 1998). See Powers v. MJB Acquisition Corp., 184 F. 3d at 1153. Ferguson is particularly instructive here, where the Defendants have already voluntarily and expeditiously remedied the equitable or injunctive claims. In Ferguson, deaf and hearing-impaired users of 9-1-1 emergency telephone service commenced an action under the ADA, the Rehabilitation Act, and § 1983 against city and the police department commander seeking declaratory, injunctive and damages relief. They maintained that the City’s 9-1-1 emergency service did not respond effectively, or in some instances at all, to their Telecommunications Device for the Deaf (“TDD”). Plaintiffs relied on TDDs to communicate by telephone. It was undisputed that the Plaintiffs had been victims of various crimes and when they attempted to call 9-1-1 via their TDDs, the City’s 9-1-1 system failed to work. Further, the city’s TDD was operated in contravention of Department of Justice Regulations. After entering into a consent decree and settling the injunctive issues, the defendants filed a motion for summary judgment on the damage claim. The trial court found no evidence of intentional discrimination or deliberate indifference and granted summary judgment to the defendants on the compensatory damage claim. In affirming summary judgment, the Ninth Circuit first noted, that:
Substantial corrective remedies are available to plaintiffs, however, regardless of intent. In the present case, equitable relief is sufficient to remedy the problem. The principal purpose of this litigation as evidenced by the prayers for relief was to gain declaratory and permanent injunctive relief compelling compliance with the ADA and the Rehabilitation Act. The
4

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corrective action has already been taken by the City, so the basic problem itself has been solved. Ferguson v. City of Phoenix 157 F.3d at 674 -675. As noted by the trial court in that case,
“The district court found no intentional violations, even saying that plaintiffs' evidence ‘is
hardly the stuff of intentional conduct or deliberate indifference.’" Ferguson v. City of
Phoenix 157 F.3d at 675 quoting Ferguson, 931 F.Supp. 668, 697 (D. Ariz 1996).
The district court held that in order to show intentional discrimination, the plaintiffs had to show that the City had been "deliberately indifferent to the strong likelihood that their action or inaction was violating plaintiffs' federally protected rights." In so doing, the court utilized a "deliberately indifferent" standard in place of the "discriminatory animus" test laid out in Guardians. Guardians, 463 U.S. at 584, 103 S.Ct. 3221. In the present case, we need not determine which standard is proper, since plaintiffs' claims fail under either one. In light of the evidence in the record, the situation clearly appears to be no more than at times some not uncommon bureaucratic inertia as well as some lack of knowledge and understanding about the DOJ Manual's requirements. There is nothing to show, even suggest, any deliberate indifference or discriminatory animus on the part of the City towards plaintiffs. Ferguson v. City of Phoenix 157 F.3d at 675.
Similarly in the case at hand, when the Barbers raised the issue, they were directed
to the most senior individual in the Department of Motor Vehicles. That individual, Steve
Tool, immediately sought advice from the Attorney General’s office.
Q: Do you recall what you did in response? A: First thing I did was look at the statute. And then subsequent to that, I contacted the attorney general’s office for an opinion. I think we were very sympathetic to their so-called plight and wanted to try to accommodate them and asked for guidance from the AG’s office.
(See Steve Tool Deposition at p. 13, ll. 23-24; p. 14 ll. 1-5 attached hereto as Exhibit L).
Mr. Tool, as the head of the Department, relied on that advice to tell Ms. Barber that a
5

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grandfather was not a guardian per se. (See Exhibit 4 attached to Plaintiffs’ Response to Motion for Summary Judgment, Letter from Steve Tool to Marcia Barber dated November 22, 2004). The letter simply states the legal conclusion of the Attorney General that a grandparent is not a guardian by virtue of being a grandparent. The letter then goes on to state that the division is working with legislative staff to get the statute amended, a direct response to Ms. Barber’s request for accommodation. As noted in Plaintiff’s response Mr. Tool also stated that he thought the request to have the grandparent supervise was reasonable, but the statute would not allow it. (See Exhibit D, at p. 22, ll. 15-20; p. 23, ll. 12-16; p. 33, ll. 21-25; p. 34. ll. 1-3). As a result, the Department then worked on amending the statute to accommodate her request.
A: I mean, I think we did everything we could to try to accommodate her. And I had an interest in trying to do that. (See Exhibit D, at p. 29, ll. 9-11). A: I think we continued to work on drafting the change in the legislation – I mean, the legislative session had begun, and we had gone through the process of including grandparent and were proceeding down that path. (See Exhibit D, at p. 24, ll. 22-25; p. 25. l. 1). The Department acted in reliance on the language of the statute and the advice of the Attorney General’s office in concluding that without some written document, the grandfather could not supervise the driving. It is undisputed that the Department immediately undertook efforts to amend the statute prior to Julianna’s sixteenth birthday. These actions belie any claim of discriminatory animus or deliberate indifference. II. The 2004 Statute Provided Marcia Barber with an Appropriate Avenue to Designate an Alternate to Supervise her Daughter’s Driving. Plaintiffs maintain that Marcia was discriminated against because she is disabled and was not allowed to designate her father as a supervisor. Plaintiffs do not deny that
6

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Marcia could have executed a limited guardianship or power of attorney empowering and limiting another individual to supervise the driving. See Colo. Rev. Stat. § 15-14-102 (4) (“Guardian” means an individual at least twenty-one years of age, resident or non-resident, who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or by court.”); Colo. Rev. Stat. § 15-14-105 (A parent or guardian of a minor or incapacitated person, by power of attorney, may delegate to another person, for a period not exceeding twelve months, any power regarding care, custody, or property of the minor….); Colo. Rev. Stat. § 15-14-201 (“a person becomes a guardian of a minor by appointment by a parent or guardian by will or written instrument or upon appointment by the court….) (A copy of these statutes is attached to Defendant’s Motion for Summary Judgment as Exhibit K). Thus, Marcia Barber had, but never exercised, the option of appointing Juliana’s grandfather solely for the purpose of supervising Juliana’s driving. Indeed, she admits that she never even explored the possibility of executing a document that would not relinquish any parental rights, but would instead simply empower another individual to supervise the driving. (Exhibit C at p. 51-52, ll. 13-25; 1-2). She never inquired as to whether she could simply file a piece of paper with the Department of Motor Vehicles saying she was giving a limited guardianship for the purpose of supervising her daughter’s driving or a power of attorney designating her father to supervise. (Exhibit C at 55-56, ll. 24-25, ll. 1-5).
In response to Defendants’ Motion for Summary Judgment, Marcia Barber now makes the conclusory assertion that she would have signed a designation similar the one she executed in August of 2005, had that been offered to her and the fact that she signed the document later entitles her to an inference that she would have signed one previously.
7

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However, she provides no evidence that she ever requested or even mentioned execution
of such a document to any of the Defendants.
Q: Okay. Did you follow up on his (Suthers) suggestion about exploring any kind of guardianship or limited guardianship? A: No. That’s an unreasonable requirement. That’s the crux of the issue. Q: Did you inquire with anyone or with him as to whether you could simply file a piece of paper saying that you were giving a limited guardianship for the purposes of supervising your daughter’s driving? A: No. I continued to say, I am entitled to a reasonable accommodation under the ADA.
(Exhibit C, Marcia Barber Deposition at p. 55, ll. 19-25; p. 56, ll. 1-5). The gravamen of
Plaintiffs’ argument is that requiring a writing for a disabled person is per se unreasonable.
Indeed, she testified to this repeatedly in her deposition. The regulations associated with
the ADA and Rehabilitation Act “require public entities to ‘make reasonable modifications in
policies, practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless the public entity can demonstrate that making
the modifications would fundamentally alter the nature of the service, program, or activity.’” Urban by Urban v. Jefferson County School Dist. R-1 89 F.3d 720, 727 (10th Cir. 1996)
quoting 28 C.F.R. § 35.130(b)(7). However, the United States Supreme Court has held that
that section 504 does not require affirmative action to accommodate the disabled. See
Southeastern Community College v. Davis, 442 U.S. 397, 410-11, (1979); Urban by Urban
v. Jefferson County School Dist. R-1 89 F.3d at 728. The Rehabilitation Act is based upon
equal access to state programs and facilities. Urban at 728. Thus an accommodation is
required when the disabled cannot “receive benefits without accommodation.” Id (emphasis
in original). 8

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We also stated that a federally-funded education system may violate section 504 when the school system's practices "preclude the handicapped from obtaining system benefits realized by the nonhandicapped." Id. at 853 (emphasis added). Thus section 504 requires accommodation in a neighborhood school when disabled children cannot receive educational benefits without accommodation; it does not require a school district to modify its program in order to accommodate a single child in a neighborhood school, especially if that child is already receiving educational benefits in another environment. Urban by Urban v. Jefferson County School Dist. R-1 89 F.3d at 728.
Here, it is not disputed that Marcia Barber had the same access to the driving program as any unlicensed parent. Like any unlicensed parent she had an avenue to designate in writing someone to supervise her daughter’s driving. However, she determined that such writing was not reasonable. This flies in the face of the express provisions of the ADA and Rehabilitation Act which are designed to allow for equal access. As this Court noted in its Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss p. 4, fn 1, the inquiry is “whether those with disabilities are as a practical matter able to access benefits to which they are entitled” (citations omitted). Defendants maintain that Plaintiffs were able to access these benefits by a simple act of signing a limited guardianship or power of attorney limited to the sole issue of supervision of driving.
Finally, Plaintiff’s contention that requiring a written document is not safety related lacks any semblance of credibility. The Plaintiffs themselves point out the fundamental interest parents have in raising their children. The statute requires a written document from a parent when allowing someone else to supervise his or her child’s driving in order to ensure that a parent has ultimate responsibility and agreement regarding supervision. The Court should remain mindful of the general principle that courts will not second guess the public health and safety decisions of state legislatures. See Young v. City of
9

Case 1:05-cv-00807-REB-CBS Document 66 Filed 12/18/06 USDC Colorado Page 10 of 11
Claremore, Okla., 411 F. Supp. 2d 1295, 1310 (N.D. Okla. 2005). Plaintiffs acknowledge the importance of a writing supporting such designation. Julianna admits that it was important that her mother maintain some control as to who supervises the driving and designate such in writing. Moreover, the Attorney General’s Office expressly advised that the statute relating to supervision of minor unlicensed drivers is to promote and protect the public safety. (See 2/23/05 letter from Dodd to Menendez attached to Plaintiffs’ Response). Indeed, allowing such designation in the absence of a writing would be irresponsible. For example, some parents may not want certain relatives to supervise their child’s driving. The requirement of a writing ensures that the parent maintains control over who, and who does not, supervise, and enhances public safety by ensuring that parents control their child’s practice. Finally, a writing ensures that state officials maintain some tracking method to ensure that only those responsible individuals designated by a parent supervise.
WHEREFORE, Defendants respectfully request that the Court grant Defendants’ Motion for Summary Judgment.
JOHN W. SUTHERS Attorney General /s/ James X. Quinn ELIZABETH H. McCANN* JAMES X. QUINN* 1525 Sherman Street, 5th Floor Denver, Colorado 80203, Telephone:(303) 866-4307 *Counsel of Record
10

Case 1:05-cv-00807-REB-CBS Document 66 Filed 12/18/06 USDC Colorado Page 11 of 11

CERTIFICATE OF SERVICE

I certify that on December 18, 2006, I electronically filed the foregoing with the Clerk of

Court using the CM/ECF system which will send notification of such filing to the following e-

mail addresses:

Amy F. Robertson arob@foxrob.com

Kevin W. Williams kwilliams@ccdconline.org

/s/ James X. Quinn

11

 </s> Case 1:05-cv-00807-REB-CBS Document 74 Filed 05/14/07 USDC Colorado Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn
Civil Action No. 05-cv-00807-REB-CBS JULIANNA BARBER, by and through her next friend, Marcia Barber; MARCIA BARBER;
Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES; M. MICHAEL COOK, in her individual and official capacity as Executive Director of the Colorado Department of Revenue; and JOAN VECCHI, in her individual and official capacity as Senior Director of the Colorado Division of Motor Vehicles,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Blackburn, J.
The matter before me is Defendants’ Motion for Summary Judgment [#61], filed November 8, 2006. I grant the motion.
I. JURISDICTION I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

Case 1:05-cv-00807-REB-CBS Document 74 Filed 05/14/07 USDC Colorado Page 2 of 5
(1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Concrete Works, 36 F.3d at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999).
III. ANALYSIS This case began as a challenge to a 2004 Colorado statute that allowed a 15year old who had received a learner’s permit to drive only under the supervision of a parent, stepparent, or legal guardian who held a valid driver’s license. See §42-2-
2

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106(1)(b), C.R.S. (2004). Plaintiff Marcia Barber, who is legally blind and does not hold a driver’s license, and her minor daughter, Julianna, argued that the law discriminated against them on the basis of Marcia’s disability. Subsequent amendments to the subject statute have mooted all claims in this lawsuit save one. The sole remaining issue is whether plaintiffs are entitled to compensatory damages under section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Defendants have now moved for summary judgment on this issue.
Compensatory damages are available under section 504 only if plaintiffs can establish that defendants intentionally discriminated against them. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999). “[I]ntentional discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.” Id. Deliberate indifference, in turn, “requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that [knowledge].” Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001).
The first half of this test is easily met. Defendants frankly acknowledged that the statute as worded in 2004 potentially violated plaintiffs’ rights under the Americans With Disabilities Act and the Rehabilitation Act. Nevertheless, no reasonable jury could conclude based on the evidence presented that defendants failed to act on that knowledge in such a way as to constitute deliberate indifference. To the contrary, when Marcia Barber contacted then Senior Director of the Colorado Department of Motor Vehicles, Steve Tool, in late October of 2004, he contacted the state Attorney
3

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General’s office to determine whether the Department of Motor Vehicles could accommodate her situation. Likewise, when Marcia Barber later spoke directly with Attorney General John Suthers, he proposed several options that would have allowed Julianna’s grandfather to supervise her driving until such time as the statute could be amended.
Plaintiffs suggest that these proposed accommodations were not reasonable because they required Marcia to relinquish her parental rights. She claims that instead, she should have been allowed simply to designate Julianna’s grandfather to supervise her driving without creating a legal guardianship. However, it is clear that defendants reasonably viewed the statute as then worded to prohibit this type of informal designation, and plaintiffs do not contend that this interpretation of the then-existing law was inaccurate or improper. An accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable. Plaintiffs’ frustration with the limited legal options available to them short of amendment of the statute is insufficient to sustain their burden of showing that defendants were deliberately indifferent to their federally protected rights.
THEREFORE, IT IS ORDERED as follows: 1. That Defendants’ Motion for Summary Judgment [#61], filed November 8, 2006, is GRANTED; 2. That plaintiffs’ sole remaining claim for compensatory damages under the Rehabilitation Act is DISMISSED WITH PREJUDICE; 3. That judgment SHALL ENTER on behalf of defendants, State of Colorado,
4

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Department of Revenue; State of Colorado, Department of Revenue, Division of Motor Vehicles; M. Michael Cook, in her official capacity of Executive Director of the Colorado Department of Revenue; and Joan Vecchi, in her official capacity as Senior Director of the Colorado Division of Motor Vehicles, and against plaintiffs, Julianna Barber, by and through her next friend, Marcia Barber; and Marcia Barber, as to plaintiffs’ sole remaining claim for compensatory damages under the Rehabilitation Act;
4. That the Trial Preparation Conference, currently scheduled for Friday, June 8, 2007, at 9:00 a.m., as well as the trial, currently scheduled to commence on Monday, June 25, 2007, are VACATED; and
5. That defendants are AWARDED their costs, to be taxed by the Clerk of the Court pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated May 14, 2007, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge
5

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-00807-REB-CBS JULIANNA BARBER, by and through her next friend, MARCIA BARBER, et al.,
Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE, et al.,
Defendants.
PLAINTIFFS’ MOTION TO RECONSIDER AND TO ALTER JUDGMENT
Pursuant to Fed. R. Civ. P. 59(e), Plaintiffs, by and through their attorneys, hereby submit their Motion to Reconsider and to Alter Judgment. In its May 14, 2007, Order Granting Defendants’ Motion for Summary Judgment, the Court made factual findings that are in significant dispute, and ultimately granted summary judgment to Defendant based on its holding that as a matter of law, Defendants did not act with deliberate indifference because “[a]n accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable.” (Order Granting Defs.’ Mot. for Summ. J. (“Order”) at 4.)
As set forth below, and with all due respect, this holding was in manifest error and was based on an argument not made by Defendants. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504"), requires recipients of federal financial assistance to make reasonable accommodations for persons with disabilities. Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 (“Title II”) -- which both

parties and the Court agree “‘impose[s] identical obligations’ and, thus is construed similarly” to Section 504 (Order Granting in Part and Denying in Part Defs.’ Mot. to Dismiss at 3)1 -- applies a similar requirement to public entities. Numerous courts have found that public entities -- either under Section 504 or Title II -- are required to provide an otherwise reasonable accommodation even when doing so would be contrary to a statute, regulation or ordinance. Further, there is substantial evidence that Defendants knew that they were obligated to provide the requested accommodation regardless of whether it violated state law. Plaintiffs respectfully request that the Order and subsequent judgment be vacated, and that a trial date in this case be set.
Background Colo. Rev. Stat. § 42-2-106(b), as it read in 2004, explicitly prohibited anyone other than a licensed parent, stepparent or guardian from supervising the driving of a minor with an instruction permit. See Colo. Rev. Stat. § 42-2-106(b) (2004). As a result, Plaintiff Marcia Barber, who is blind, contacted Steve Tool, then the Senior Director for the Colorado Division of Motor Vehicles, and requested the accommodation of designating her father to supervise her daughter Julianna’s driving. (See Pls.’ Mem. in Opp’n to Defs.’ Mot. for Summ. J. (“Pls.’ Opp’n”) at 2.)2 Mr. Tool thought that this was a reasonable request, and he twice consulted with the Attorney General’s Office to see if Ms. Barber’s request could be granted. (Id. at 2-

1

See also Mem. Br. in Support of Defs.’ Mot. to Dismiss at 5-6.

2

All citations to Plaintiffs’ Memorandum in Opposition to Defendants’

Motion for Summary Judgment incorporate by reference all record cites on the cited

pages.

-2-

3.) On both occasions, he was told that the requested accommodation would be denied. (Id.)
Ms. Barber subsequently spoke with Colorado Attorney General John Suthers. There is a significant factual dispute concerning what was said during that call. Defendants claim that Mr. Suthers offered Ms. Barber the option of signing a “limited delegation of authority” that would not relinquish parental rights. (Mem. Br. in Support of Defs.’ Mot. for Summ. J. (“Defs.’ Br.”) at 6.) Ms. Barber denies that Mr. Suthers made this offer (Pls.’ Opp’n at 4), and Plaintiffs submitted substantial evidence that contradicts Defendants’ characterization of the call, including:
! a letter from the Attorney General’s Office written before the call, denying Ms. Barber’s request, and stating that only a guardian, defined as “a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person,” could supervise Julianna’s driving (id. at 3);
! testimony by Mr. Suthers that he did not “know of a guardianship, a true guardianship, other than a formal guardianship,” (id. at 4);
! a letter written by Ms. Barber to Mr. Suthers immediately after the call, to which Mr. Suthers did not respond, repeating her request that he “[a]llow[ ] [her daughter] to drive with a parent-delegate such as an uncle or grandfather” (id. at 4-5); and
! a subsequent letter from the Attorney General’s Office that unequivocally stated that, under section 42-2-106(b), it is critical that young drivers be
-3-

under the direct and immediate supervision of someone with “full parental authority,” (id. at 5). In its Order, the Court found, as a factual matter, that “Attorney General John Suthers . . . proposed several options that would have allowed Julianna’s grandfather to supervise her driving until such time as the statute could be amended.” (Order at 4.) The Court granted summary judgment to Defendants on the ground that they did not act with deliberate indifference because “[a]n accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable.” (Id. at 4.) Defendants in their summary judgment brief did not make this argument. Indeed, the Defendants did not argue that the requested accommodation was unreasonable for any reason. (See generally Defs.’ Br. at 11-19.) Had Defendants argued that they did not act with deliberate indifference because the accommodation was per se unreasonable, Plaintiffs would have demonstrated as a matter of law that an accommodation that is contrary to state law is not per se unreasonable, as set forth below. Further, Plaintiffs would have submitted and argued substantial evidence demonstrating that Defendants knew at the time that they denied the accommodation that the accommodation was not unreasonable simply because it would have required Defendants to violate section 42-2-106(b). First, Mr. Suthers testified in his deposition that he knew that under the Supremacy Clause, there are times when “federal law trumps state law,” and that the ADA requires states to provide reasonable modifications of their policies. (Dep. of John Suthers at 11-12, Exhibit 1 hereto.) Indeed, it is reasonable for the people of Colorado
-4-

to expect their attorney general and his staff to know this basic principle of constitutional law.
Further, at the time of her request, Ms. Barber, and later her attorney Mr. Mendez, repeatedly informed Defendants that they were required by the ADA to provide the accommodation despite the provisions of section 42-2-106(b), and they provided Defendants with legal authority demonstrating that this was the case.
By letter dated December 2, 2004, Ms. Barber informed Mr. Tool that under the ADA, “‘[a] public entity must reasonably modify its policies, practices or procedures to avoid discrimination.’” (Stipulations ¶¶ 20-21 and attached document P0003 (Pls.’ Opp’n Ex. 1).) She attached section II-3.6100 of the Department of Justice’s Technical Assistance Manual for Title II, which provides two examples in which accommodations are required even though they contradict existing statutes or ordinances.
After Ms. Barber’s telephone call with Mr. Suthers, she sent him and Robert Dodd (an attorney with the Attorney General’s Office) a letter dated January 25, 2005 informing them that she had spoken with a representative of the Department of Justice, who told her that “the ADA CAN override state statutes . . .” (Stipulations ¶¶ 22-23 and attached document P0005 (emphasis in original).)
On February 3,2005, Mr. Mendez sent a letter to Mr. Dodd stating that the ADA required Defendants to provide a reasonable modification of the requirements of section 42-2-106(b). (Id. ¶¶ 24-25 and attached document P0006-10.) Mr. Mendez also cited the section from the Technical Assistance Manual cited above. (Id.)
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Argument I. The Standards of Rule 59(e) Are Met.
A motion for reconsideration filed within ten days of an order granting summary judgment is treated as a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e). Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992). Proper grounds for granting such a motion include correcting manifest errors of law, id., or that “the court has patently misunderstood a party, has made a decision outside the adversarial issues presented, [or] has made a mistake not of reasoning but of apprehension . . .” Gregg v. Am. Quasar Petroleum Co., 840 F. Supp. 1394, 1401 (D. Colo. 1991).
Rule 59(e) applies here for three reasons. First, to the extent that the Court relied on its factual determination that “Attorney General John Suthers . . . proposed several options that would have allowed Julianna’s grandfather to supervise her driving until such time as the statute could be amended” (Order at 4), that is a disputed issue of fact and under Fed. R. Civ. P. 56, it was a manifest error of law to make that factual determination. Second, the legal basis for the Court’s Order -- that Ms. Barber’s requested accommodation was unreasonable -- was not argued by the parties and thus “was outside the adversarial issues presented.” Finally, as demonstrated below, the holding that “[a]n accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable” constitutes a manifest error of law. II. There Are Disputed Issues of Fact as to What Mr. Suthers Said During His
Call with Ms. Barber. In its Order, the Court determined that, during his call with Ms. Barber, Mr.
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Suthers “proposed several options that would have allowed Julianna’s grandfather to supervise her driving until such time as the statute could be amended.” (Id. at 4.) As set forth above, however, Ms. Barber denies that Mr. Suthers made suggestions that would not have required her to give up parental rights. There is substantial evidence to support this contention, including letters from the Attorney General’s Office, written both before and after the call with Mr. Suthers, stating that only someone with full parental authority could supervise Julianna’s driving. (See Pls.’ Opp’n at 3-5.)
It is unclear to Plaintiffs whether the Court relied on its determination concerning Mr. Suthers’ alleged proposals in granting summary judgment to the Defendants. To the extent that it did so, that was manifestly erroneous under Rule 56 because there are material issues of disputed fact as to what Mr. Suthers did, or did not, propose. III. Ms. Barber’s Requested Accommodation Was Not Per Se Unreasonable
Because It Required The Defendants To Act In Violation Of Colo. Rev. Stat. § 42-2-106(b). Respectfully, this Court’s determination that “[a]n accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable” (Order at 4), constitutes a manifest error of law. A. Interpretation and Enforcement of Colo. Rev. Stat. § 42-2-106(b) is a
Program or Activity of Defendants, Covered by Section 504. Section 504 applies to any program or activity receiving federal financial assistance. 29 U.S.C. § 794(a). “Program or activity” is defined to include “all of the operations of . . . a department, agency, special purpose district, or other instrumentality of a State or local government.” Id. § 794(b)(1)(A). Similarly, Title II -which “impose[s] identical obligations” to Section 504 -- applies to “anything a public
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entity does.” “Preamble to Regulation on Nondiscrimination on the Basis of Disability in State and Local Government Services,” 28 C.F.R. pt. 35 app. A at 517 (2002). Both statutes thus apply to the interpretation and enforcement of state and local laws, regulations, and ordinances. Accordingly, those statutes’ requirement that public entities must make reasonable accommodations for individuals with disabilities3 applies to the enforcement of state statutes such as Colo. Rev. Stat. § 42-2-106(b).
For example, in Innovative Health Systems, Inc. v. City of White Plains, the First Circuit addressed the question whether municipal zoning was covered by Section 504 and Title II. 117 F.3d 37, 44-45 (2d Cir. 1997) (vacated on other grounds). It held that the term “activity” in Section 504 means a “natural or normal function or operation.” Id. at 44 (internal quotations omitted). It then relied on the precise section from the Technical Assistance Manual that Ms. Barber cited to Mr. Tool and Mr. Suthers in affirming the district court’s conclusion that “[z]oning enforcement actions, including the enactment of ordinances, and any administrative processes, hearings, and decisions by zoning boards, fall squarely within the category of ‘policies, practices, or procedures’ mentioned in the regulations.” Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 233 (S.D.N.Y. 1996); see Innovative Health, 117 F.3d at 45-46 (citing Technical Assistance Manual § II-3.6100). See also, e.g., Crowder v. Kitagawa, 81 F.3d 1480, 1485 (9th Cir. 1996) (holding that a Hawai’i statute governing quarantine of animals entering the state was a policy, practice or procedure governed by Title II);

3

See, e.g., Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857 (10th Cir.

2003) (holding reasonable accommodations required by Section 504); 28 C.F.R.

§ 35.130(b)(7) (Title II regulations).

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Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Res., 19 F. Supp. 2d 567, 573-74 (N.D. W. Va. 1998) (holding that “the law and the regulations [of West Virginia] qualify as an ‘activity’ within the scope of the ADA.”); Heather K. v. City of Mallard, 946 F. Supp. 1373, 1387 (N.D. Iowa 1996) (holding that “the City’s regulation of open burning is a program, service, activity, or benefit for and on behalf of its citizens that is within the scope of Title II of the ADA.”).
Interpretation and enforcement of Colo. Rev. Stat. § 42-2-106(b) is a “natural or normal function or operation” of Defendants Division of Motor Vehicles and, thereby, the Department of Revenue of which it is a part. These acts are therefore programs or activities of Defendants, covered by Section 504.
B. Section 504 requires Defendants to make Reasonable Accommodations for Individuals with Disabilities in the Interpretation and Enforcement of Colo. Rev. Stat. § 42-2-106(b).
Because the interpretation and enforcement of Colo. Rev. Stat. § 42-2-106(b) is a program or activity of a recipient of federal funding, covered by Section 504, it is subject to that statute’s reasonable accommodation requirement. There is substantial and unanimous support for the proposition that a public entity is required to provide an otherwise reasonable accommodation even when doing so would be contrary to a regulation, ordinance or statute.
For example, in Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175, 1177 (10th Cir. 2003), the Tenth Circuit addressed whether the State of Oklahoma would be required to make reasonable accommodations in its Medicaid prescription regulations. It concluded that the reasonableness of the requested accommodation was a question
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of fact and reversed the trial court’s summary judgment in favor of the state. Id. at 1184.
In Helen L. v. DiDario. 46 F.3d 325, 327 (3d Cir. 1995), a disabled nursing home resident argued that the Department of Public Welfare (DPW) violated Title II by requiring that the resident receive services in a nursing home rather than through an attendant care program in her own home. DPW contended that the programs were funded on two separate lines of its budget, that the state constitution prohibited it from moving funds from one line to another, and that, as a result, the requested accommodation was unreasonable. Id. at 338. The court rejected this argument:
It is not now up to us to invent a funding mechanism whereby the Commonwealth can properly finance its nursing home and attendant care programs. However, the ADA applies to the General Assembly of Pennsylvania, and not just to DPW. DPW can not rely upon a funding mechanism of the General Assembly to justify administering its attendant care program in a manner that discriminates and then argue that it can not comply with the ADA without fundamentally altering its program. Id. Similarly, in Crowder, a class of blind people who used guide dogs challenged Hawai’i law that requiring quarantine for all animals entering the state. 81 F.3d at 148182. The plaintiffs proposed modifications to the quarantine requirement, but the district court granted summary judgment holding that it could not consider the proposed modifications because the state legislature had already considered the issue. See id. at 1485. The Ninth Circuit rejected this reasoning: [I]n virtually all controversies involving the ADA and state policies that discriminate against disabled persons, courts will be faced with legislative (or executive agency) deliberation over relevant statutes, rules and regulations.
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The court's obligation under the ADA and accompanying regulations is to ensure that the decision reached by the state authority is appropriate under the law and in light of proposed alternatives. Otherwise, any state could adopt requirements imposing unreasonable obstacles to the disabled, and when haled into court could evade the antidiscrimination mandate of the ADA merely by explaining that the state authority considered possible modifications and rejected them.
We are mindful of the general principle that courts will not second-guess the public health and safety decisions of state legislatures acting within their traditional police powers. However, when Congress has passed antidiscrimination laws such as the ADA which require reasonable modifications to public health and safety policies, it is incumbent upon the courts to insure that the mandate of federal law is achieved.
Id. (citation omitted). The court reversed the grant of summary judgment, holding that
there were triable issues of fact concerning the reasonableness of the plaintiffs’
proposed modifications. Id. at 1485-86.
The plaintiffs in Innovative Health Systems, a substance abuse treatment
program and its clients, brought suit under Section 504 and Title II challenging the
defendants’ refusal to permit the program to relocate to a different zoning district. 931
F. Supp. at 229-30. The defendants argued that the plaintiffs’ request to relocate was
unreasonable because doing so would violate the city zoning ordinance. Id. at 239.
The court held that notwithstanding the zoning ordinance, “[w]hether an
accommodation or modification allowing [plaintiffs’ requested relocation] is ‘reasonable’
is clearly a question of fact that cannot be resolved on this motion to dismiss for failure
to state a claim.” Id., aff’d in pertinent part 117 F.3d at 44-45.
Finally, in Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d
775, 777 (7th Cir. 2002), the plaintiffs brought suit under Title II (among other statutes)
for the defendant’s denial of a zoning variance to operate a community living facility.
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The variance request was a “‘flagrant violation’” of a city code prohibiting a community living facility from being located with 2,500 feet of another such facility. Id. at 780. The Seventh Circuit affirmed the district court’s grant of partial summary judgment to the plaintiffs, finding as a matter of law and undisputed fact that the zoning variance -- the accommodation -- was reasonable despite the city code provision. Id. at 787-88. See also, e.g., Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 53 (2d Cir. 2002) (“[A] proper reasonable accommodation claim might assert that the zoning authority should have waived or modified its rule against elevators in residential dwellings to permit those who need them to use them and thereby have full access to and enjoyment of residences there.”); Buckhannon, 19 F. Supp. 2d at 575 (holding that there was a fact issue as to whether allowing a group home for persons with disabilities to operate was a reasonable accommodation even though doing so would violate state laws and regulations requiring that residents possess the ability to remove themselves, physically, from situations involving imminent danger.); Trovato v. City of Manchester, 992 F. Supp. 493, 495-96, 499 (D.N.H. 1997) (holding as a matter of law that allowing the plaintiffs to build a paved parking space in front of their home was reasonable under Section 504 even though it violated a zoning ordinance’s setback requirements.).
These cases demonstrate that Section 504’s and Title II’s reasonable accommodation mandates apply to a public entity’s interpretation and enforcement of local and state regulations and statutes, and that public entities may be required to provide accommodations that might otherwise violate these regulations or statutes.
In this case, Colo. Rev. Stat. § 42-2-106(b), as it read in 2004, explicitly
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prohibited anyone other than a licensed parent, stepparent or guardian from supervising the driving of a minor with an instruction permit. Colo. Rev. Stat. § 42-2106(b) (2004). As a result, Ms. Barber requested the accommodation of designating her father to supervise her daughter’s driving without making him Julianna’s guardian.
This Court held that the requested accommodation was per se unreasonable because it would have required the Defendants to ignore or violate Colo. Rev. Stat. § 42-2-106(b). (Order at 4.) With all due respect, as demonstrated by the authorities cited above, this holding constituted manifest error. Section 504 requires public entities to make reasonable accommodations in their enforcement of local and state regulations and laws. An accommodation is thus not per se unreasonable simply because it contradicts or violates such laws or regulations.
This result is also dictated by the Supremacy Clause. Under the Supremacy Clause, a federal law preempts a state law “where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987) (citations omitted). Numerous courts have held that Section 504 and Title II preempt state laws. See, e.g., Brinn v. Tidewater Transp. Dist. Comm’n, 242 F.3d 227, 232-34 (4th Cir. 2001) (holding that Supremacy Clause dictated that prevailing governmental plaintiff could recover under Section 504's attorneys’ fee provision despite the fact that a state statute explicitly prohibited such recovery); South Dakota Farm Bureau, Inc. v. Hazeltine, 202 F. Supp. 2d 1020, 1042-43 (D.S.D. 2002) (holding that Title II preempted provision of state constitution where it was “impossible for the defendants to enforce and comply
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with” the state constitution without violating Title II); Galusha v. New York State Dep’t of Envtl. Conservation, 27 F. Supp. 2d 117, 124 (N.D.N.Y. 1998) (holding that where there was a possible inconsistency between Title II and state law, Title II trumped); Green v. Housing Auth., 994 F. Supp. 1253, 1257 (D. Or. 1998) (holding that Title II preempted Oregon state law concerning hearing ear dogs). IV. There Are Genuine Issues Of Material Facts As To Whether Defendants
Acted With Deliberate Indifference. In order to recover damages under Section 504, Plaintiffs must demonstrate that Defendants’ conduct was intentional. Intentional conduct includes “deliberate indifference to the strong likelihood that pursuit of [Defendants’] questioned policies will likely result in a violation of federally protected rights.” Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999). In the context of a request for reasonable accommodation, intentional conduct occurs when the plaintiff “alerted the public entity to his need for accommodation,” and the defendant’s failure to act was “more than negligent, and involve[d] an element of deliberateness.” Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001); see also Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996). Here there exists a triable issue of fact as to whether Defendants’ denial of Ms. Barber’s requested accommodation was made with deliberate indifference. Mr. Suthers knew that where federal and state laws conflict, federal law trumps. Defendants were informed repeatedly by Ms. Barber and her attorney of their obligation under federal law to permit the requested accommodation, and were provided with legal authorities demonstrating this obligation. A reasonable jury could find that the Defendants’
-14-

continued refusal to permit the accommodation constituted deliberate indifference. CONCLUSION
For the reasons set forth above, Plaintiffs respectfully request that this Court grant Plaintiffs’ motion for reconsideration, deny Defendants’ motion for summary judgment and set the case for trial.
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1A The undersigned certifies that she sent an email to counsel for Defendants explaining the grounds for the present motion and asking whether Defendants would oppose. Defendants’ counsel stated that Defendants oppose this motion.

Respectfully submitted,
s/ Amy Farr Robertson Amy Farr Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700 arob@foxrob.com
Dated: May 29, 2007

Kevin W. Williams Legal Program Director Carrie Ann Lucas Equal Justice Works Fellow Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775 kwilliams@ccdconline.org Attorneys for Plaintiff

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Certificate of Service I hereby certify that on May 29, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address:
Elizabeth H. McCann beth.mccann@state.co.us James X. Quinn james.quinn@state.co.us Kevin W. Williams kwilliams@ccdconline.org Carrie Ann Lucas clucas@ccdconline.org
s/ Amy Farr Robertson Amy Farr Robertson Attorney for Plaintiffs Fox & Robertson, PC 910 16th Street Suite 610 Denver, CO 80202 303.595.9700 (voice) 303.595.9705 (fax) arob@foxrob.com
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Exhibit 1

John Suthers

Page 1

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE DISTRICT OF COLORADO

3 Civil Action No. 05-CV-807-REB-CBS

4 JULIANNA BARBER, by and through her next friend,

Marcia Barber; MADELINE BARBER, by and through her

5 next friend, Marcia Barber; MARCIA BARBER; COLORADO

CROSS-DISABILITY COALITION, a Colorado non-profit

6 corporation; and AMERICAN COUNCIL OF THE BLIND OF

COLORADO, INC., a Colorado non-profit corporation,

7

Plaintiffs,

8

v.

9

STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF

10 COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR

VEHICLES; M. MICHAEL COOKE, in her official capacity

11 as Executive Director of the Colorado Department of

Revenue; and JOAN VECCHI, in her official capacity

12 as Senior Director of the Colorado Division of Motor

Vehicles,

13

Defendants.

14

15 ____________________________________________________

16

DEPOSITION OF JOHN W. SUTHERS

17 ____________________________________________________

18

PURSUANT TO NOTICE, the above-

19 entitled deposition was taken on behalf of the

20 Plaintiffs at the Attorney General's, 1525 Sherman

21 Street, 5th Floor, Denver, Colorado, on

22 August 11, 2006, at 10:03 a.m., before Dawn E.

23 Eastman (Calderwood), Certified Shorthand Reporter,

24 Registered Professional Reporter, and Notary

25 Public.

Calderwood-Mackelprang, Inc. 303.477.3500

John Suthers

Page 11

1

Q.

Would the filing of the application be

2 with a court?

3

A.

In a formal guardianship, yes.

4

Q.

Is there something other than a formal

5 guardianship, to your knowledge?

6

A.

Well, I think I know what you're

7 driving at. And we'll need to discuss a

8 conversation that I had with your client.

9

But I don't know of a guardianship, a

10 true guardianship, other than a formal guardianship.

11 But I certainly think there are ways to empower

12 people for a limited purpose without going to court.

13

Q.

All right. You are aware that the

14 United States Constitution has a provision called

15 the Supremacy Clause?

16

A.

Yes.

17

Q.

Generally speaking, under that clause,

18 where a federal law conflicts with a state law, the

19 federal law trumps the state law?

20

A.

If there's a direct conflict,

21 generally speaking, the Supremacy Clause would

22 indicate -- if it's a matter of proper federal

23 authority -- it would indicate that the federal law

24 trumps the state law, that's correct.

25

Q.

Do you know what the Americans with

Calderwood-Mackelprang, Inc. 303.477.3500

John Suthers

1 Disabilities Act is?

Page 12

2

A.

Yes, I do.

3

Q.

That's a federal law?

4

A.

Yes.

5

Q.

You would agree that the ADA -- strike

6 that.

7

You know when I refer to the "ADA,"

8 I'm talking about the Americans with Disabilities

9 Act?

10

A.

Yes.

11

Q.

And you would agree that's an

12 important civil rights law?

13

A.

Yes.

14

Q.

You understand that under some

15 circumstances, the ADA requires states to provide

16 reasonable modifications of policies to persons with

17 disabilities?

18

A.

Yes.

19

Q.

And you'd also agree that it's

20 important that states comply with the ADA?

21

A.

Yes.

22

Q.

How did you first learn of the

23 situation involving the Barbers?

24

A.

I would think that I was handed a

25 telephone message from someone in Colorado Springs,

Calderwood-Mackelprang, Inc. 303.477.3500

 </s> Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-807-REB-CBS JULIANNA BARBER, by and through her next friend, Marcia Barber; and MARCIA BARBER; Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES; M. MICHAEL COOK, in her official capacity as Executive Director of the Colorado Department of Revenue; and JOAN VECCHI, in her official capacity as Senior Director of the Colorado Division of Motor Vehicles, Defendants.
DEFENDANTS’ RESPONSE TO MOTION TO RECONSIDER AND TO ALTER JUDGMENT
The Defendants, through the Colorado Attorney General, respectfully submit the following Response to Plaintiffs’ Motion to Reconsider and to Alter Judgment. Document # 76, filed May 29, 2007.
PRELIMINARY STATEMENT The sole remaining claim in this case was a claim for compensatory damages pursuant to section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”).1 On May 14, 2007, this Court granted Defendants’ Motion for Summary Judgment on the remaining claim. In doing so the Court properly defined the remaining issue and the Plaintiffs’ burden of proof with respect to the remaining claim:
1 Plaintiffs’ claims for injunctive relief were mooted when, as a result of Plaintiff’s concerns, the Defendants sought and achieved an amendment to the statute that addressed Plaintiffs’ concerns.

Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 2 of 14
Compensatory damages are available under section 504 only if plaintiffs can establish that defendants intentionally discriminated against them. Powers v. MJBAcquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999). “[I]ntentional discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.” Id. Deliberate indifference, in turn, “requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that [knowledge].” Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). Order Granting Defendants’ Motion for Summary Judgment, Doc # 74 at p. 3. Plaintiffs do not take issue with the Court’s statement of controlling law. Plaintiffs now seek to relitigate the issues resolved by this Court’s Order via their Motion to Reconsider and to Alter Judgment. For the reasons set forth below, the Motion should be denied.
STANDARDS FOR RULE 59(e) REVIEW The Tenth Circuit has explained, "[g]rounds warranting a motion to reconsider include[:] (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir.1995); “Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Id. "Such problems rarely arise and the motion to reconsider should be equally rare." Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983); see M.K. v. Tenet, 196 F.Supp.2d 8, 12 (D.D.C.2001) ("A motion pursuant to Fed.R.Civ.P. 59(e) to alter or amend judgment after its entry is rarely granted."). Gotfredson v. Larsen LP 2006 WL 2943008, *3 (D. Colo. 2006).
2

Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 3 of 14
SUMMARY OF ARGUMENT Plaintiffs maintain that the Court committed manifest errors of law in granting Defendants’ Motion for Summary Judgment. Specifically, Plaintiffs maintain the Court made manifest errors of law by: (1) making factual determinations of facts in dispute; (2) determining that Plaintiffs’ requested accommodation was unreasonable because it was not argued by Defendants; and (3) determining that the requested accommodation that would require Defendants to violate the law was per se not reasonable. Plaintiffs present no proper grounds for reconsideration. They fail to demonstrate an intervening change in the law, the existence of new evidence, a misapprehension of facts, or the need to correct clear error or to prevent manifest injustice. In addition the Court properly evaluated applicable law and applied that law to the facts of this case. Plaintiffs’ disagreement with the Court’s legal conclusions does not present proper grounds for reconsideration. Accordingly, their motion must be denied.
ARGUMENT I. Plaintiffs’ Motion fails to state a proper ground for Rule 59 Relief.
Rule 59(e) does not offer a party the opportunity to re-litigate its case after the court has rendered a decision. Servants of the Paraclete, 204 F.3d at 1012 ("It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing."); All West Pet Supply Co. v. Hill's Pet Prods. Div., ColgatePalmolive Co., 847 F.Supp. 858, 860 (D.Kan.1994) ("A motion to reconsider or to alter or amend may not be used as a vehicle for the losing party to rehash arguments previously considered and rejected by the district court."). Thus, it is not a tool to re-raise issues that
3

Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 4 of 14
were or could have been raised in prior briefing. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991).
Plaintiffs are simply re-raising issues that were or could have been raised in prior briefing. Accordingly, their motion should be denied. II. The Court properly defined the applicable legal standard and applied the
undisputed facts thereto. Plaintiffs have missed the essential holding in the Court’s Order granting summary judgment to the Defendants. The Court held that
“no reasonable jury could conclude based on the evidence presented that defendants failed to act on that knowledge [that the statute potentially violated plaintiffs’ rights] in such a way as to constitute deliberate indifference.” Order Granting Summary Judgment, Document #74, p. 3 This is the issue in the case. The Plaintiffs have the burden of proving that the Defendants acted intentionally to discriminate against them so as to entitle them to monetary damage, by inferring that they acted with deliberate indifference to the strong likelihood that following the statutory language would likely result in a violation of federally protected rights. They have failed to produce any evidence of intentional discrimination by the Defendants, the Director of the Division of Motor Vehicles at that time, Mr. Tool, or by the agency. In fact, as the Court correctly noted in it Order, the evidence produced on this point and referenced in the brief in support of the Defendants’ Motion for Summary Judgment, establishes just the opposite: the agency not only was not indifferent to the interests of the Plaintiffs, it took immediate action to seek guidance from the Attorney General’s office and to change the statute so as to address an unintentional oversight in the statute.
4

Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 5 of 14
The Court granted Defendant’s Motion for Summary Judgment because there is no evidence that Defendants intentionally discriminated against the Plaintiffs. The undisputed evidence demonstrated that rather than acting with indifference to Plaintiffs’ plight, the Defendants did everything in their power to appease the Plaintiff. Ms. Barber dealt directly with Steve Tool, who at that time was the Senior Director of the Colorado Division of Motor Vehicles. (Exhibit C to Defendants’ Motion for Summary Judgment, Deposition of Marcia Barber at p. 32, ll. 11-20). Mr. Tool thoroughly investigated the issue. All of Marcia Barber’s interactions with Mr. Tool were pleasant and professional. Marcia Barber admits that Mr. Tool was very supportive and understood her issues. (Exhibit C, Deposition of Marcia Barber at p. 45, ll. 2-25; p. 46, ll. 1-18). Indeed, even Marcia Barber admits that Steve Tool could not simply disregard the statute and allow Julianna’s grandfather to supervise because “his hands were tied” as a result of the statutory language. (Exhibit C Marcia Barber Deposition at p. 45, ll. 14-23; Exhibit D, Deposition of Steve Tool at p. 22, ll. 15-20). However, he was very interested in finding a solution and sought guidance from the Colorado Attorney General’s Office and further inquired into amending the statute at issue to accommodate all parents who do not have a driver’s license. (Exhibit D, Deposition of Steve Tool at p. 28, ll. 7-13). Marcia Barber was advised that as a result of her inquiries, the statute at issue was in the process of being amended. (Exhibit C Marcia Barber Deposition at p. 46, ll. 2-7). The Department of Motor Vehicles was both involved in and in favor of undertaking the onerous task of making this legislative change as quickly as possible as a result of Plaintiffs’ requests. (Exhibit D, Deposition
5

Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 6 of 14
of Steve Tool at pp. 11-13; Exhibit D, Tool Deposition at p. 33, ll. 2-20; Exhibit C Marcia Barber Deposition at p. 46, ll. 2-7). Marcia Barber testified in her deposition that she was very pleased with the statutory changes and stated “that’s all I ever wanted.” (Exhibit C, Marcia Barber Deposition at p. 75, ll. 5-9).
Far from intentionally discriminating, or being deliberately indifferent to Plaintiffs by failing to act, Defendants did everything they could to accommodate. Although it was late in the process, they were able to get the statute clarified that very year in such a way that would have allowed Julianna Barber to obtain her driver’s license within a year after getting her permit, as required by law of all 15 year olds. (Exhibit J, Designation Form; Exhibit C Marcia Barber Deposition at pp. 66-67). Accordingly, the Court correctly concluded that in light of the undisputed evidence, “no reasonable jury could conclude based on the evidence presented that defendants failed to act on that knowledge in such a way as to constitute deliberate indifference.” (See Order Granting Defendants’ Motion for Summary Judgment, Doc # 74 at p. 3) III. There are no genuine issues of material fact as to whether Defendants acted
with deliberate indifference and no manifest error by the Court Plaintiffs maintain that because Marcia Barber disputed the Attorney General’s deposition testimony relating to her telephone conversation, summary judgment was not proper. This argument fails. There is no dispute that Ms. Barber did not want to designate anyone as a guardian for the limited purposes of supervising her daughter’s driving (Marcia Barber deposition, attached to Defendant’s brief in support of Motion for Summary Judgment as Exh. C , Doc. #61 , p. 51-52. (See Defendants’ Reply in Support of Motion for Summary Judgment at pp. 7-10). Any accommodation offered to her short of the one she wanted would not satisfy her. The Plaintiffs note that it is unclear if the Court relied on
6

Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 7 of 14
Mr. Suthers’ proposals in granting summary judgment to the Defendants. Whether or not these facts are disputed is not relevant to the Court’s determination of the Motion. What is relevant is that the Defendants did all they believed they could reasonably do to accommodate Ms. Barber and address her concerns within the dictate of the law and there is no evidence, disputed or otherwise, that suggests they intentionally discriminated against her or her daughter.
Both Plaintiffs concede that the 2004 statute was a mere legislative oversight, and there was no intent to discriminate against the disabled. Moreover, there is no dispute that Defendants undertook significant efforts to change the statute prior to Julianna’s sixteenth birthday. Defendant Tool, the Senior Director of the Colorado Division of Motor Vehicles, investigated the issue. Marcia Barber admits that he was very supportive and understood her issues and pursued an amendment to the statute. In their very short section of the brief addressing this crux of the issue of summary judgment, the Plaintiffs did not cite any disputed facts. The only other facts cited by Plaintiffs in their brief are that Mr. Suthers knew that federal law could trump state law and that the Defendants were informed by the plaintiff and her attorneys that they believed the state had an obligation under federal law to permit the requested accommodation and citations to law they alleged that supported their position. These are not factual disputes that would negate the ability of the Court to grant a summary judgment motion. The clear conclusion remains that there are no facts from which a jury could find intentional discrimination on the part of the defendants against the plaintiffs.
As noted by the Court in its Order: ”Deliberate indifference, in turn, ‘requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to
7

Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 8 of 14
act upon that [knowledge].’Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001).” (Order Granting Defendants’ Motion for Summary Judgment, Doc 72 at p. 3). Plaintiffs concede that in order to meet this burden, they were required to demonstrate that “the defendant’s failure to act was “more than negligent, and involve[d] an element of deliberateness.” Duvall v. County of Kitsap, 260 F.3d at 1139 (9th Cir. 2001); see also Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996). Plaintiffs failed to present evidence sufficient to meet this burden. IV. The cases cited by the Plaintiffs are Distinguishable and are not on Point to
the Issue of Summary Judgment Plaintiffs cite a number of cases seeking injunctive relief, all but one from other jurisdictions, concerning whether states and municipalities must comply with the ADA in enforcing municipal zoning regulations (Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997), Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002)), enforcing Medicaid prescription regulations (Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003), the manner in which a state Department. of Public Welfare operates attendant care programs (Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995)), and enforcing regulations to enforce a quarantine requirement for animals (Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996). These cases do not address the issue in this case: whether a reasonable jury could conclude based on the evidence presented that Defendants acted with intentional discrimination against them in the context of a damages claim. In the Innovative Health Systems case, supra, the Court reviewed a grant of a preliminary injunction in favor of a drug and alcohol rehabilitation center and its clients against a city Board of Zoning Appeals with respect to whether its decision applying
8

Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 9 of 14
zoning regulations to the center violated Title II of the ADA. The court addressed several issues concerning proper grounds for a preliminary injunction and standing issues, and found that zoning decisions could come within the purview of the ADA. There was no claim for damages presented nor was there any discussion of the type of evidence that would support a claim for damages under the ADA even though there was explicit and substantial evidence that the Board based its zoning decision on discriminatory animus toward those people who used drugs and alcohol. Id. at 49. The Court found a cognizable injunctive claim. In that case, the Commissioner of Zoning and the attorney for the City had previously found that the center was not in violation of the zoning code and it was only the Board that had found otherwise.
The Court in Oconomowoc Residential Program, Inc. v. Wilwaukee, supra also addressed a city zoning issue in the context of an injunctive case. The city denied a zoning variance for a community living facility for disabled individuals. The Court found that a zoning variance was a reasonable accommodation under the facts of the case and did not address the question of whether the ADA preempted the City’s spacing ordinance. There was no damages claim.
In Fisher, supra, the Tenth Circuit decided not to grant summary judgment to the state agency that administered the Medicaid program for Oklahoma and its director in an injunctive case. The state had decided administratively to limit the number of free prescriptions per month it would provide to patients in home placement versus those in nursing homes. The Court gave great deference to a regulation passed by the Dept. of Justice that required a public entity to administer services, programs and activities in the most integrated setting appropriate. The Court noted that a public entity could be relieved
9

Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 10 of 14
of its duties under the ADA’s integration mandate if it could show that making the modifications would fundamentally alter the nature of the service, program or activity. The Court’s decision addressed the requirements of the integration regulation and whether the state had shown that compliance would cause it to fundamentally alter its program in the context of the specific facts of the case. The Court noted factual disputes in connection with these claims and found that summary judgment for the defendants was not appropriate. Again, there was absolutely no discussion of the requirements for a damages claim nor discussion of state statutes.
The case of Helen L. v. DiDario, supra dealt with this same DOJ regulation requiring a state to house a disabled person in the most integrated setting possible. This was also a declaratory and injunctive case in which the plaintiffs alleged violation of the ADA by the state department of public welfare through its regulations or policies requiring the plaintiff to receive services in a nursing home rather than in her home. Her challenge was based on the afore-mentioned regulation. The Court found in favor of the plaintiff, noting that a state cannot rely on a funding mechanism of the state and then argue that it cannot comply with the ADA without fundamentally altering its program. There was no discussion of the evidence necessary to support a damages claim under the Rehabilitation Act.
Crowder, supra was also an injunctive case in which plaintiffs challenged the Hawaiian procedures regarding quarantine of guide dogs. The Court found that there were genuine issues of fact as to whether modifications to the quarantine requirements proposed by the plaintiffs were reasonable, thus summary judgment was inappropriate. The case did not involve a request for damages.
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Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 11 of 14
These cases address various factual situations concerning the application of the ADA to city and state regulations but they do not consider the requirements for a claim for damages under the Rehabilitation Act, Contrary to Plaintiffs’ assertion, they do not establish that the Court made a manifest error of law in concluding that an accommodation that would have required the defendants to willfully ignore or violate the law is per se not reasonable. V. The issue of the reasonableness of Plaintiffs’ requested accommodation was
argued by the parties. Plaintiff is entitled to a reasonable accommodation, not her requested accommodation. This issue was briefed and argued by the parties. (See Memorandum Brief in Support of Motion for Summary Judgment, Doc # 62 at pp. 6,713-14, 15). Indeed, in Plaintiffs’ Response to the Motion for Summary Judgment, Plaintiffs devoted an entire section of their brief to this issue. (See Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment, Doc # 65 at pp. 8-9). That section is specifically titled “The Accommodation Requested by Ms. Barber was Reasonable.” Additionally, the Defendants replied to Plaintiff’s argument. (See Defendants’ Reply in Support of Motion For Summary Judgment, Doc #66 at pp. 7-10).2 VI. Plaintiffs are not entitled to their ‘requested accommodation” instead they are entitled to a “reasonable accommodation” and thus failed to meet the elements necessary to sustain a Rehabilitation Act claim for damages. As noted by the Court:
Plaintiffs suggest that these proposed accommodations were not reasonable because they required Marcia to relinquish her
2 Moreover, even assuming arguendo that the issue was not argued, as delineated above, Rule 59cannot be used to “revisit issues already addressed or advance arguments that could have been raised in prior briefing." Servants of the Paraclete, 204 F.3d at 1012 (emphasis added).
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Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 12 of 14
parental rights. She claims that instead, she should have been allowed simply to designate Julianna’s grandfather to supervise her driving without creating a legal guardianship. However, it is clear that defendants reasonably viewed the statute as then worded to prohibit this type of informal designation, and plaintiffs do not contend that this interpretation of the then-existing law was inaccurate or improper. An accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable. Plaintiffs’ frustration with the limited legal options available to them short of amendment of the statute is insufficient to sustain their burden of showing that defendants were deliberately indifferent to their federally protected rights.
Plaintiffs contend that the Court’s determination that “an accommodation that would
have required defendants to willfully ignore or violate the law is per se not reasonable”
constituted manifest error of law is inaccurate.
The Court understood in its ruling that the defendants reasonably viewed the
statute at the time to prohibit an informal designation without a written document (based
on an opinion from their legal counsel, the Attorney General’s office) but once they
became aware of the potential application of the statute to disabled individuals, they took
immediate steps to correct the clearly unintentional oversight.
As noted by the Court in its order granting summary judgment, requiring the
Defendants to willfully ignore or violate the law in this context is not reasonable,
particularly in light of options available to Ms. Barber in accordance with the statute as it
existed before amendment. The Court’s conclusion that Defendants did not act improperly
in relying upon the previous statute, and that Marchia Barber’s request to informally
designate her father was unreasonable does not constitute manifest error. Indeed, in
Young v. City of Claremore, 411 F.Supp. 2d 1295 (2005), the United States District Court
in Oklahoma came to the same result. In that case, a golf cart user, who had cerebral
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Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 13 of 14
palsy, sued the city, claiming that the ordinance barring use of the cart on streets violated the ADA. The City moved for summary judgment. In granting the motion the Court held:
After careful consideration of (1) the Oklahoma state law allowing (rather than rejecting) particularized modifications of the ban on operation of golf carts in specific circumstances, which is expressly designed to reduce the safety risks associated with operation of golf carts on streets; and (2) the only alternative proposed by Plaintiffs, which is unfettered access to operate his golf cart around Claremore, the Court finds the modification requested by Plaintiff in this case is unreasonable as a matter of law. Young v. City of Claremore, Okla. 411 F.Supp.2d at 1310. Similarly, Marcia Barber was unwilling to accept any accommodation other than being permitted to informally designate her father. Thus the Court properly held that her requested accommodation was not per se reasonable in light of all the circumstances. IV. Conclusion The Court correctly concluded that there is no disputed evidence in this case that supports a conclusion by a jury that the defendants intentionally discriminated against the Plaintiffs. As the Court noted: “Plaintiffs frustration with the limited legal options available to them short of amendment of the statute is insufficient to sustain their burden of showing that defendants were deliberately indifferent to their federally protected rights.” (Order, document #74, p. 4. Respectfully submitted,
JOHN W. SUTHERS Attorney General /s/ James X. Quinn
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Case 1:05-cv-00807-REB-CBS Document 80 Filed 06/21/07 USDC Colorado Page 14 of 14

ELIZABETH H. McCANN* Deputy Attorney General JAMES X. QUINN* Assistant Attorney General Civil Litigation and Employment Law Section 1525 Sherman Street, 5th Floor Denver, Colorado 80203, Telephone:(303) 866-4307 *Counsel of Record

CERTIFICATE OF SERVICE

I certify that on June 21, 2007, I electronically filed the foregoing with the Clerk of

Court using the CM/ECF system which will send notification of such filing to the following e-

mail addresses:

Amy F. Robertson arob@foxrob.com

Kevin W. Williams kwilliams@ccdconline.org

/s/ James X. Quinn

14

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-00807-REB-CBS JULIANNA BARBER, by and through her next friend, MARCIA BARBER, et al.,
Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE, et al.,
Defendants.
PLAINTIFFS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION TO RECONSIDER AND TO ALTER JUDGMENT
Plaintiffs, by and through their attorneys, hereby submit their Reply Brief in Support of Their Motion to Reconsider and to Alter Judgment. I. Plaintiffs Have Established That This Court Committed Manifest Error, And
That At A Minimum, There Are Genuine Issues Of Material Fact As To Whether Defendants Acted With Discriminatory Intent. Plaintiffs request for reconsideration makes a simple, two-step argument: (1) This Court's Order Granting Defendants' Motion for Summary Judgment ("Order") was manifestly erroneous because Defendants were obligated to provide a reasonable accommodation to Plaintiffs notwithstanding the provisions of Colo. Rev. Stat. § 42-2-106(1)(b) as it existed in 2004 (“section 42-2-106(1)(b)”); and (2) Defendants acted intentionally because Plaintiffs repeatedly informed them of this obligation, and even gave Defendants specific legal authority establishing the obligation, yet

Defendants nevertheless refused to provide Plaintiffs with their requested accommodation.
A. Defendants Do Not Contradict Plaintiffs’ Argument That the Court Committed Manifest Error in Holding That an Accommodation Requiring Defendants to Violate the Law Was Per Se Unreasonable.
This Court’s Order held that "[a]n accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable." (Order at 4.) Plaintiffs, in their opening brief for reconsideration, cited several cases and other legal authorities demonstrating that a public entity must provide an otherwise reasonable accommodation even when doing so would be contrary to a statute, regulation or ordinance. (Pls.’ Mot. to Reconsider and to Alter J. (“Plaintiffs’ Motion”) at 7-14.) Defendants do not disagree or argue that Plaintiffs have misconstrued these cases. Rather, Defendants attempt to distinguish these cases only on the ground that they did not involve claims for damages. (Defs.’ Response to Mot. to Reconsider and to Alter J. (“Defendants’ Response”) at 8-11.)
This misses the point. Plaintiffs did not cite these cases to address the legal standard for recovery of damages. Rather, Plaintiffs cited these cases to demonstrate that the holding at the heart of the Order -- that a reasonable accommodation could not require a violation of state law -- was manifestly erroneous. Defendants have not presented any legal authorities that contradict Plaintiffs' argument.
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B. There Are Many Facts In The Record that Establish Defendants’ Intent to Discriminate under Section 504.
With respect to step two, the Court and both parties agree on the applicable
legal standard for the recovery of damages under Section 504. It requires a showing of
intentional discrimination.
“[I]ntentional discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.” Deliberate indifference, in turn, “requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that [knowledge].”
Order at 3 (quoting Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir.
1999) and Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)).
Plaintiffs’ Motion cited a number of facts demonstrating that this standard is met
in this case, including:
• Defendants knew that Ms. Barber was disabled, and the she needed, and was requesting, a reasonable accommodation;1
• Mr. Tool believed that the accommodation she requested was reasonable;2

1

Pls.’ Mot. at 2. All references to Plaintiffs’ pleadings incorporate by

reference the record citations therein.

2

Id.

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• Mr. Suthers knew that under the Supremacy Clause, where a federal law (such as Section 504) conflicts with a state law (such as section 42-2-106(1)(b)), the "federal law trumps state law;"3
• At the time of her request, Ms. Barber, and later her attorney Mr. Mendéz, repeatedly informed Defendants that they were required by the ADA to provide the accommodation despite the provisions of section 42-2-106(1)(b), and they provided Defendants with legal authority demonstrating that this was the case;4
• Nevertheless Defendants refused to provide Plaintiffs with the requested accommodation, instead insisting that Plaintiffs wait more than seven months -- over half of the only year during which the program was relevant -- for section 42-2-106(1)(b) to be amended.5
Defendants’ Response does not challenge any of the above facts. From these facts, a reasonable jury could find that Defendants knew that Plaintiffs needed the requested accommodation and knew that the accommodation was required by law, but nevertheless refused to provide the accommodation. Summary judgment thus should have been denied.
Several courts have denied summary judgment to defendants where similar (and, in some cases, less compelling) facts exist. For example, in Davis v. Flexman,

3

Id. at 4.

4

Id. at 5.

5

See Mem. Br. in Support of Defs.’ Mot. Summary J. (“Defendants’

Summary Judgment Motion”) at 7 (Docket no. 62 filed Nov. 8, 2006); see also Pls.’

Mem. in Opp’n to Defs.’ Mot. for Summ. J. at 3-5.

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109 F. Supp. 2d 776, 791 (S.D. Ohio 1999), the court held that a genuine issue of material fact existed concerning intentional discrimination where the defendant had been informed of the need for an accommodation, had been provided with a copy of the ADA, and had been informed by the plaintiff that defendant had a legal obligation to provide the accommodation. See also Proctor v. Prince George's Hosp. Ctr., 32 F. Supp. 2d 820, 829 (D. Md. 1998) ("Thus, in cases where a public accommodation is on notice that its failure to provide an accommodation may violate the Rehabilitation Act and intentionally opts to provide a lesser accommodation, compensatory damages are available."); Falls v. Prince George's Hosp. Ctr., No. Civ.A. 97-1545, 1999 WL 33485550, at *10 (D. Md. Mar. 16, 1999) ("‘[W]hile defendants may have had the best of intentions, and while they may have believed themselves to be within the confines of the law, they nevertheless intentionally violated . . . the Rehabilitation Act by willfully withholding from plaintiff the reasonable accommodations to which she was entitled under the law. They had notice of the potential risk of their decision, and clearly refused the accommodation knowingly.'" (Quoting Bartlett v. N.Y. State Bd. of Law Exam’rs, 970 F. Supp. 1094, 1151 (S.D.N.Y. 1997), aff’d in part and vacated in part on other grounds, 156 F.3d 321 (2d Cir. 1998)). II. The Arguments in Defendants’ Opposition Lack Merit.
A. Defendants’ Proposed Alternative Accommodation did not Provide Meaningful Access.
Defendants contend that they reasonably accommodated Plaintiffs by working to amend section 42-2-106(1)(b). Because this purported “accommodation” limited Julianna to three months of practice driving, it was not a permissible alternative to the
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accommodation requested by the Barbers: immediately permitting Julianna to practice driving with her grandfather. A reasonable accommodation must provide meaningful access to the programs and activities of a covered entity. See, e.g., Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857 (10th Cir. 2003) (Holding that “‘to assure meaningful access, reasonable accommodations in the [public entity's] program or benefit may have to be made.’” (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985))). Defendants’ purported "accommodation" -- amending section 42-2-106(1)(b) -- does not meet this requirement.
Under Section 504's “meaningful access” requirement, Defendants may not afford persons with disabilities benefits of their programs and activities that are "not equal to that afforded others." 28 C.F.R. § 41.51(b)(1)(ii). The program at issue here is the minor driver instruction program. (See Order Granting in Part and Denying in Part Defs.’ Mot. to Dismiss (Oct. 17, 2005) at 4.) Under that program, as it existed when Julianna Barber turned 15, a teenager between the ages of 15 and 16 could practice driving with a minor instruction permit provided she was accompanied by a licensed parent, stepparent or guardian. Section 42-2-106(1)(b). This program was designed to further the legislative objective of “[p]roviding additional behind-the-wheel training with a parent, guardian, or other responsible adult before obtaining a minor driver’s license [which] is the beginning of the young driver’s accumulation of experience.” Colo. Rev. Stat. § 42-2-105.5 (2004).
By its terms, section 42-2-106(1)(b) was only relevant during the 12 months of a person's life between the age of 15 and 16. (See Ex. A to Defs.’ Mot. for Summary J.)
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Once a person turned 16, Colo. Rev. Stat. § 42-2-106(1)(a) applied, which at the time allowed any licensed driver over the age of 21 to supervise the minor's driving. (See id.) The period during which Marcia and Julianna Barber could benefit from this program was between October 13, 2004 -- when Julianna obtained her minor instruction permit -- and September 8, 2005, when she turned 16 and became eligible to drive with any licensed driver over the age of 21.
The amendment to section 42-2-106(1)(b) -- that Defendants claim constituted a reasonable accommodation -- did not go into effect until May 27, 2005, approximately three months before Julianna's sixteenth birthday; she had, by then, missed out on over seven months of the driving practice the Colorado General Assembly intended her to receive. Thus while similarly-situated persons without a disabled parent would have been able to engage in supervised driving beginning at age 15 for 12 months pursuant to section 42-2-106(1)(b), under the "accommodation" provided by Defendants, Julianna was limited to at most three months of supervised driving under section 42-2-106(1)(b). Defendants' purported accommodation violated Section 504 because it denied Julianna meaningful access by providing her with benefits that were not equal to those provided to others.
B. Discriminatory Intent Does Not Require Discriminatory Animus. Defendants also argue that there was no discriminatory intent because Mr. Tool, then the Senior Director for the Colorado Division of Motor Vehicles, was “pleasant and nice” to Ms. Barber. (Defs.’ Response at 5.) There are two flaws with this argument. First, as a matter of law, discriminatory intent does not require discriminatory animus.
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See, e.g., Duvall, 260 F.3d at 1138-39 (holding that discriminatory animus is not required to establish discriminatory intent under Section 504). Rather, as set forth above, discriminatory intent is shown where a plaintiff requested an accommodation, and the defendant refused to provide it where, as here, the defendant was aware -- or even deliberately indifferent -- “to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.” Powers, 184 F.3d at 1153.
Furthermore, as a factual matter, Mr. Tool was not responsible for denying Ms. Barber’s request that her father be allowed to supervise Julianna’s driving. To the contrary, he thought the request was imminently reasonable. (See Pls.’ Mot. at 2.) He then consulted with the Attorney General’s Office, and it was that Office that denied Ms. Barber’s requested accommodation. (See id. at 2-3.)
Defendants further contend that Ms. Barber would not designate anyone “as a guardian for the limited purposes of supervising her daughter’s driving,” and that she had “options available” under section 42-2-106(1)(b) other than giving up her parental rights. (Defs.’ Response at 6, 12.) This is directly contradicted by the Defendants’ own letters, written at the time of the requested accommodation, stating that: (1) only a guardian, defined as “a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person,” could supervise Julianna’s driving; and (2) it is critical that young drivers be under the direct and immediate supervision of someone with “full parental authority.” (Stipulations ¶¶ 19, 26 and attached documents P0001-2 & P0011-13 (Pls.' Mem. in
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Opp'n to Defs.' Mot. for Summ. J. Ex. 1).) While Plaintiffs believe assignment of even limited guardianship -- not required of nondisabled parents -- was an unreasonable and discriminatory burden, there is substantial evidence that the State of Colorado would not have permitted -- much less proposed -- such a measure.
Finally, Defendants suggest that the only accommodation sought by Ms. Barber was an amendment of section 42-2-106(1)(b). (Defs.’ Response at 6.) To the contrary, Ms. Barber made it clear in a letter to Mr. Suthers that although she recognized that the statute might eventually be amended, “I am respectfully requesting a more immediate and reasonable modification to the existing law so that my daughter . . . may be permitted to practice driving with her learner’s permit now.” (See Ex. P-4 to Dep. of J. Suthers (attached as ex. 6 to Pls.’ Mem. in Opp’n to Defs.’ Mot. for Summ. J.).) Respectfully submitted,

s/ Timothy P. Fox Timothy P. Fox Amy Farr Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700 arob@foxrob.com
Dated: July 2, 2007

Kevin W. Williams Legal Program Director Carrie Ann Lucas Equal Justice Works Fellow Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775 kwilliams@ccdconline.org Attorneys for Plaintiff

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Certificate of Service I hereby certify that on July 2, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email address:
Elizabeth H. McCann beth.mccann@state.co.us James X. Quinn james.quinn@state.co.us Kevin W. Williams kwilliams@ccdconline.org Carrie Ann Lucas clucas@ccdconline.org
s/ Amy Farr Robertson Amy Farr Robertson Attorney for Plaintiffs Fox & Robertson, PC 910 16th Street Suite 610 Denver, CO 80202 303.595.9700 (voice) 303.595.9705 (fax) arob@foxrob.com
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 </s> Case 1:05-cv-00807-REB-CBS Document 87 Filed 01/24/08 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn
Civil Action No. 05-cv-00807-REB-CBS
JULIANNA BARBER, by and through her next friend, MARCIA BARBER, et al.,
Plaintiffs,
v.
STATE OF COLORADO, DEPARTMENT OF REVENUE, et al.,
Defendants.
ORDER DENYING PLAINTIFFS’ MOTION TO RECONSIDER AND TO ALTER JUDGMENT
Blackburn, J.
The matter before me is Plaintiffs’ Motion To Reconsider and To Alter
Judgment [#76], filed May 29, 2007. I deny the motion.
The bases for granting a motion to reconsider are limited:
Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing. Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations
omitted). Despite plaintiffs’ remonstrations to the contrary, none of these
circumstances pertains here.

Case 1:05-cv-00807-REB-CBS Document 87 Filed 01/24/08 USDC Colorado Page 2 of 4
Plaintiffs maintain I erred in concluding that no genuine issue of material fact as to their claims for compensatory damages under the ADA and the Rehabilitation Act existed because “[a]n accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable.” (Order Granting Defendants’ Motion for Summary Judgment at 4 [#74], filed May 14, 2007.)1 They cite a number of cases that they claim support a contrary conclusion. I am not persuaded. The cases on which plaintiffs rely do little more than affirm the uncontroversial conclusion that state statutes that violate the ADA will not stand. (See Plaintiffs’ Motion To Reconsider an To Alter Judgment at 9-12 [#76], filed May 29, 2007.) Injunctive and declaratory relief, as was at issue in those cases,2 clearly is warranted under those circumstances. However, none of the cases cited by plaintiffs addresses the particular issue presented by their claim for compensatory damages under the ADA and the Rehabilitation Act. That narrow issue is whether a state agency and its officials can be found to have intentionally discriminated against a disabled individual by virtue of adhering to a reasonable reading of a duly enacted state statute, while simultaneously
1 Plaintiffs complain further that this issue was not raised by defendants’ summary judgment motion. There are at least two problems with this argument. First, plaintiffs cite no supporting authority, and I have found none, that limits the scope of my analysis in ruling on the motion for summary judgment to the precise issues raised by the parties. Second, and more to the point, the quintessence of the motion was whether Marcia Barber’s requested accommodation – that her father be permitted to supervise Julianna Barber’s driving without a formal designation of guardianship, as required by the statute as then worded – was reasonable.
2 In their reply brief, plaintiffs cite several district court cases that they claim show that a defendant who has been made aware that its conduct violates the ADA can be liable for compensatory damages. (See Plf. Reply Br. at 4-5.) Again, however, in none of these cases were the defendants faced with the prospect of being asked to contravene a duly enacted state statute.
2

Case 1:05-cv-00807-REB-CBS Document 87 Filed 01/24/08 USDC Colorado Page 3 of 4
working to facilitate an expeditious legislative amendment thereto.3 I find no support for
plaintiffs’ theory that either the ADA or the Rehabilitation Act provides compensatory
damages under those circumstances.
At base, plaintiffs’ argument is that they were not afforded the particular
accommodation they requested. This is not the law. Defendants’ duty is to offer a
reasonable accommodation, not plaintiffs’ preferred accommodation.4 See Selenke v.
Medical Imaging of Colorado, 248 F.3d 1249, 1263 (10th Cir. 2001). No reasonable
jury could find that defendants acted unreasonably by choosing the orderly and
permanent approach of amending the statute to rectify the hiatus in its coverage over
the ad hoc granting of individual waivers to the statute.5
3 Plaintiffs invoke also the Supremacy Clause in support of their argument that defendants’ actions constitute intentional discrimination. This argument is not raised in prior briefing, although clearly implicated by the issues raised therein. See Servants of the Paraclete, 204 F.3d at 1012 (noting that a motion to reconsider “is not appropriate to . . . advance arguments that could have been raised in prior briefing”). Moreover, plaintiffs cite no authority for the proposition that the Supremacy Clause required defendants to ignore duly enacted state statutes simply on the ipse dixit of plaintiffs’ attorney.
4 Plaintiffs maintain that there are disputed issues of fact concerning whether they were offered any accommodation other than amendment of the statute. However, Marcia Barber admitted in her deposition that she would not have accepted the accommodation Attorney General John Suthers maintains he offered her – permitting her to sign a limited delegation of authority to permit her father to supervise Julianna’s driving – in any event. Thus, this alleged dispute would not preclude summary judgment.
5 By legislative standards, the statute was expeditiously amended. Plaintiffs cite no authority, and I have found none, to support their implicit assumption that having to await the natural culmination of the legislative process or otherwise experience any sort of delay between their request for accommodation and its fulfillment is by definition unreasonable. The cases I have found appear to support a contrary conclusion. See, e.g., Trobia v. Henderson, 315 F.Supp.2d 322, 337 (W.D.N.Y. 2004) (delays in administrative processing of plaintiff’s claims for reasonable accommodation did not constitute failure to accommodate by employer), aff’d, 143 Fed. Appx 374 (2nd Cir. 2005); Gregory v. Otac, Inc., 247 F.Supp.2d 764, 772 (D. Md. 2003) (restaurant that provided ramp for handicapped access did not violate ADA simply because ramp was not as convenient and direct as plaintiff would have preferred); Rennie v. United Parcel Service, 139 F.Supp.2d 159, 172 (D. Mass. 2001) (noting, in regard to “interactive process” required in employment situations, that ““[n]othing in the [ADA] regulations or in the cases indicates ... that an employer must move with maximum speed to complete [the reasonable accommodation] process and preempt any possible concerns.... [T]he employer is entitled to move at whatever pace he chooses as long as the ultimate problem – the employee's performance of her
3

Case 1:05-cv-00807-REB-CBS Document 87 Filed 01/24/08 USDC Colorado Page 4 of 4 THEREFORE, IT IS ORDERED that Plaintiffs’ Motion To Reconsider and To
Alter Judgment [#76], filed May 29, 2007, is DENIED. Dated January 23, 2008, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge
duties – is not truly imminent.”) (quoting Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 737 (5th Cir. 1999)).
4

 </s> Case 1:05-cv-00807-REB-CBS Document 62 Filed 11/08/06 USDC Colorado Page 1 of 20
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-807-REB-CBS JULIANNA BARBER, by and through her next friend, Marcia Barber; and MARCIA BARBER; Plaintiffs, v. STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES; M. MICHAEL COOK, in her official capacity as Executive Director of the Colorado Department of Revenue; and JOAN VECCHI, in her official capacity as Senior Director of the Colorado Division of Motor Vehicles, Defendants.
MEMORANDUM BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The Defendants, through the Colorado Attorney General, respectfully submit the following Memorandum Brief in Support of their Motion for Summary Judgment.
PRELIMINARY STATEMENT The sole remaining claim in this case is a claim for compensatory damages pursuant to section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”) brought by a mother and her daughter. The Rehabilitation Act prohibits discrimination based on one's disabilities. In Colorado, individuals between the ages of 15 and 16 may obtain a minor driving instruction permit. In 2004, when the events that led to the filing of this lawsuit occurred, minors with such permits were allowed to practice driving under the supervision of a licensed parent, stepparent or guardian. C.R.S. § 42-2-106(1)(b)(2004).

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Minors with a learner’s permit are required to obtain 50 hours of supervised driving and have their permit for 1 year before obtaining their license after they turn sixteen. Marcia Barber (mother) is blind, and thus not licensed to operate a motor vehicle. She was not qualified pursuant to statute to supervise Julianna Barber (daughter) while Julianna accumulated experience necessary for her to receive an unrestricted driver’s license when she turned sixteen. Marcia Barber maintains that Defendants discriminated against her on the basis of her disability when they allegedly failed to make reasonable modifications by allowing Julianna’s grandfather to supervise her driving while she had her instructional permit prior to her sixteenth birthday. Julianna maintains that although she is not disabled and was not discriminated against, she sustained damages as a result of the alleged discrimination against her mother. See Barber, et al., v. State of Colorado, et al., 2006 WL 213970 (D. Colo. 2006).
The claims initially asserted by Plaintiffs in this action included claims for injunctive relief to force Defendants to make such a reasonable modification under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. In 2005, in response to Plaintiff’s concerns, the Colorado General Assembly passed, and the Governor signed, a bill amending § 42-2-106(1)(b) to allow supervision by a grandparent with power of attorney. In 2006 the General Assembly broadened the statute further to allow all parents who do not have licenses to designate another licensed driver over the age of 21 to supervise their minor children’s driving. As acknowledged by Plaintiffs, this new statute rendered moot Plaintiffs’ claims for injunctive relief. As such, the parties stipulated to dismiss all claims for injunctive relief, as well as all claims under Title II of the Americans with Disabilities Act and all claims of Plaintiffs Madeline Barber, the Colorado Cross
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Disability Coalition, and the American Council of the Blind of Colorado. Accordingly, the sole remaining claim is brought by Marcia and Julianna Barber for compensatory damages against the Entity Defendants for alleged violation of the Rehabilitation Act. (See Docket #36 at p. 16; Docket # 52 and 55).
STATEMENT OF UNDISPUTED MATERIAL FACTS 1. Julianna Barber is a resident of Colorado Springs, Colorado. At the time of the filing of the Second Amended Complaint she was 16 years old. (Second Amended Complaint at ¶ 4). 2. Marcia Barber is a resident of Colorado Springs, Colorado, and is the mother of Julianna. She suffers from retinitis pigmentosa and is limited in the major life activity of seeing. (Second Amended Complaint at ¶ 6). 3. Marcia Barber does not have a driver’s license. (Second Amended Complaint at ¶ 29). 4. Julianna’s father, though not disabled, does not have a driver’s license. (Second Amended Complaint at ¶ 28). 5. Colorado Residents are eligible to apply for a minor’s driver’s license at age 16. Colo. Rev. Stat. § 42-2-104 (1)(c). (Second Amended Complaint at ¶ 21). 6. At the age of 15, individuals may obtain a minor’s instruction permit under certain circumstances. (Second Amended Complaint at ¶ 22). 7. In order to obtain an instructional permit, a person who is 15 years old, must be enrolled in an approved driver education course. In addition, the person must provide a written statement signed by the “parent, stepparent, or guardian and the instructor…”
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establishing such enrollment. Colo. Rev. Stat. § 42-4-106(1)(b). (Second Amended Complaint at ¶ 24).
8. Prior to 2005, the permit issued pursuant to this section authorized the minor to drive “under the supervision of the parent, stepparent or guardian who cosigned the application for the minor’s instruction permit if such parent, stepparent or guardian holds a valid driver’s license.” (Exhibit A, prior version of § 42-2-106(b)).
9. Such permit also entitled the applicant to drive a motor vehicle, which is marked so as to indicate that it is a motor vehicle used for instruction and which is properly equipped for such instruction upon highways when accompanied by or under the supervision of an approved driver education instructor who holds a valid driver’s license. (See Exhibit A).
10. Julianna Barber was born on September 8, 1989. She turned 15 on September 8, 2004. (Second Amended Complaint at ¶ 23).
11. One month after her fifteenth birthday, on October 13, 2004, Julianna Barber obtained a minor’s instruction permit. She completed a driver’s education course on October 23, 2004. (Second Amended Complaint at ¶ 25; Exhibit B, Deposition of Julianna Barber at p. 23, l. 8).
12. In late October or early November of 2004, Marcia Barber inquired if Julianna could be permitted to drive with her grandfather, a licensed driver, until Julianna turned 16 years of age. She was ultimately referred to Steve Tool, who at that time was the Senior Director of the Colorado Division of Motor Vehicles. (Exhibit C, Deposition of Marcia Barber at p. 32, ll. 11-20).
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13. Mr. Tool investigated the issue. All of Marcia Barber’s interactions with Mr. Tool were pleasant and professional. Marcia Barber admits that Mr. Tool was very supportive and understood her issues. Marcia Barber never spoke with or had any interaction with Michael Cooke. (Exhibit C, Deposition of Marcia Barber at p. 45, ll. 2-25; p. 46, ll. 1-18).
14. Marcia Barber admits that Steve Tool could not simply disregard the statute and allow Julianna’s grandfather to supervise because “his hands were tied” as a result of the statutory language. (Exhibit C Marcia Barber Deposition at p. 45, ll. 14-23; Exhibit D, Deposition of Steve Tool at p. 22, ll. 15-20). However, he was very interested in finding a solution and sought guidance from the Colorado Attorney General’s Office and further inquired into amending the statute at issue to accommodate all parents who do not have a driver’s license. (Exhibit D, Deposition of Steve Tool at p. 28, ll. 7-13).
15. Marcia Barber’s request was initially denied because the state statute only permitted a licensed parent, stepparent, or guardian to supervise a minor’s driving. (Exhibit D, Deposition of Steve Tool at p. 33, ll. 21-25). The only reason her request was denied was because of the express statutory language. (Exhibit D, Deposition of Steve Tool at p. 34, ll. 1-3).
16. Marcia Barber admits that Tool was very interested in finding a solution. (Exhibit C Marcia Barber Deposition at p. 46, ll. 1-3; p. 63). Along these lines Marcia Barber was advised that as a result of her inquiries, the statute at issue was in the process of being amended (Exhibit C Marcia Barber Deposition at p. 46, ll. 2-7).
17. Approximately two months after her discussion with Steve Tool, in January of 2005, Marcia Barber called the Colorado Attorney General, John Suthers, to discuss the
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issue. Mr. Suthers advised Marcia Barber that it was pretty clear that this was a legislative oversight and that the statute should be changed. At that point Marcia Barber advised Suthers that amendment of the statute was already in the works. (Exhibit E, Deposition of John Suthers at pp. 17-18).
18. In addition to the long term solution of the amendment of the statute, they discussed the immediate issue of Julianna. Mr. Suthers advised Marcia Barber that he was certain that he could assist her in solving her immediate situation until the law was changed. (Exhibit E, Deposition of John Suthers at pp. 17, 21; p. 28, ll. 15-25; p. 29, ll. 19; pp. 30-31).
19. Specifically, Mr. Suthers discussed with Marcia Barber the possibility of signing or drafting some sort of document or limited delegation of authority that would comply with the spirit of the statute to allow Marcia Barber’s father to supervise the driving until such time as the statute was amended. (Exhibit E, Deposition of John Suthers at 1718, 20, 27-28, 31-32).
20. However, Marcia Barber was unwilling to sign any document whatsoever to allow her father to supervise the driving. (Exhibit C, Deposition of Marcia Barber at p. 51, ll. 5-24; p. 55, ll. 19-25; p. 56, ll. 1-5). She made this point very clear to Mr. Suthers. (Exhibit E, Deposition of John Suthers at pp. 18, 22, 24-25, 26-27, 29, 33-34, 35). Suthers specifically advised Marcia Barber that she would not be relinquishing any parental rights and that they simply needed to come up with some device by which she would designate the grandfather of the child, for purposes of driving with the child, to comply with the statute. (Exhibit E, Deposition of John Suthers at p. 18, ll. 1-18; p. 22, ll. 12-23).
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21. However, it became apparent to Suthers that Marcia Barber was both unwilling to sign any designation or document and that she was not intent on solving the immediate problem, but was in fact setting up a lawsuit. (Exhibit E, Deposition of John Suthers at p. 33, ll. 3-7)
22. Marcia Barber admits that the requirement that an unlicensed parent sign a designation document to allow someone else to supervise the driving was a requirement that any unlicensed parent would have to meet whether or not they were disabled (Exhibit C, Deposition of Marcia Barber at p. 66, ll. 5-16). Additionally, Julianna admits that because her mother is required to sign an affidavit of financial responsibility it was important that the parent maintain some control as to who supervises the driving and designate in writing who could supervise the driving. (Exhibit B, Deposition of Julianna Barber at 33-34).
23. As a result of Marcia Barber’s inquiries, and the efforts of the Defendants, effective July 1, 2005, the Colorado Legislature amended the above referenced statute. A minor driver under the age of 16, who obtained an instruction permit was entitled to drive under the supervision of the parent, stepparent, grandparent with power of attorney, or guardian who holds a valid driver’s license. (See Exhibit F, Amended Colo. Rev. Stat. § 42-2-106(b) effective July 1, 2005).
24. The Department of Motor Vehicles was both involved in and in favor of making this legislative change as a result of Plaintiffs’ requests. (Exhibit D, Deposition of Steve Tool at pp. 11-13).
25. The Colorado Legislature again amended the referenced statute to add: “If the parent, stepparent, grandparent with power of attorney, or guardian or foster parent,
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who signed the affidavit of liability pursuant to section 42-2-108(1)(a), does not hold a valid Colorado driver's license, the parent, stepparent, grandparent with power of attorney, or guardian or foster parent may appoint an alternate permit supervisor. An alternate permit supervisor shall hold a valid Colorado driver's license and be twenty-one years of age or older.” The Department of Motor Vehicles suggested and supported this amendment. (Exhibit D, Tool Deposition at p. 33, ll. 2-20).
26. Marcia Barber testified in her deposition that she was very pleased with the statutory changes and stated “that’s all I ever wanted.” (Exhibit C, Marcia Barber Deposition at p. 75, ll. 5-9).
27. In order to be qualified to get her driver’s license, Julianna needed to have a permit for 1 year, and during that year acquire 50 hours of behind the wheel experience. Thus, the earliest date she could have acquired her license was one year after receiving her permit on October 13, 2005. (Exhibit B, Julianna Barber Deposition at p. 25, ll. 15-25; p. 26, ll. 9-17).
28. Julianna acquired her 50 hours of driving experience in one year and one month. Julianna took the test to obtain her driver’s license in November 10, 2005, and obtained her license on November 14, 2005. (Exhibit B, Julianna Barber Deposition at p. 40, ll. 15-24; Exhibit H, License).
30. After obtaining her permit, Julianna acquired her 50 hours of driving experience and practiced her driving and logged hours in October and November of 2004 immediately after she obtained her permit. She logged the other hours in May, June, July, August, September, October and November of 2005. (Exhibit I, Log Sheet; Exhibit B, Julianna Barber Deposition at p. 46, ll. 13-24).
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31. The statute allowing a permitted minor driver to drive with a grandparent with power of attorney went into effect on July 1, 2005. Although Marcia Barber did not want to sign a power of attorney, she signed a designation pursuant to amended statute on August 10, 2005, designating Julianna’s grandfather to supervise, thus delaying the ability of the grandfather to supervise for one month. (Exhibit J, Designation; Exhibit B, Julianna Barber Deposition. p 32, ll. 4-25). There was enough time for Julianna’s grandfather to supervise the driving for Julianna to get her license within a year after getting her permit, as required by law of all 15 year olds. (Exhibit J, Designation Form; Exhibit C Marcia Barber Deposition at pp. 66-67).
32. After the change in the statute, two days after her last driving session with her driving instructor, Julianna began to drive with her grandfather. (Exhibit B, Julianna Barber Deposition at p. 31; Exhibit I, Log Sheet).
33. Julianna was not eligible to obtain her license when she turned 16, because she received her permit 1 month after her fifteenth birthday, and was required to have such permit for 1 year before receiving a license. Pursuant to statute, however, after she turned 16, Julianna could practice her driving with any licensed driver over 21 years of age. Three days after her last driving session with grandfather on October 2, 2005, she began driving with Barry Wick, a friend of her mothers. ( Exhibit B, Julianna Barber Deposition at p. 36, l. 25; p. 37, ll. 1-14; Exhibit I, Log Sheet).
34. She completed her 50 hours and took her final drivers test for obtaining her license on November 10, 2005. She received her license on November 14, 2005, approximately thirteen months after obtaining her learner’s permit. (Exhibit H, License; Exhibit B, Julianna Barber Deposition p. 38-39).
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35. Julianna admits that she was not discriminated against. (Barber v. State, 2006 WL 213970 at *1; Exhibit B, Julianna Barber Deposition at p. 45, ll. 13-21).
36. Julianna admits that the Defendants were not purposefully trying to discriminate against the disabled and that the issue resulted from a legislative oversight and that the law was appropriately changed (Exhibit B, Julianna Barber Deposition at p. 49, ll. 5-18).
37. Julianna admits she has not sustained any damages whatsoever. (Exhibit B, Julianna Barber Deposition at p. 47, ll. 1-25; p. 48, ll. 1-3; p. 50, ll. 20-23).
38. Marcia Barber has not seen any psychologists, social workers or counselors and has not taken any medications for anything related to anxiety or emotional distress as a result of this incident. (Exhibit D, Marcia Barber Deposition at p. 43, ll. 13-19).
STANDARDS FOR SUMMARY JUDGMENT Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In response to a motion for summary judgment, the burden shifts to the party opposing the motion to produce factual evidence, not mere allegation or argument, to show a triable issue of facts exists. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). The party opposing the motion must show specific facts in an affidavit, discovery response, or other document sworn under penalty of perjury showing the need for trial. Burk v. K Mart Corp., 956 F.2d 213, 215 (10th Cir. 1991); Handy v. Price, 996 F.2d 1064, 1066 (10th Cir. 1993).
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ARGUMENT

I. Elements of Plaintiffs’ Claim for Compensatory Damages under the Rehabilitation Act.

Section 504 of the Rehabilitation Act states: "No otherwise qualified individual with

a disability ... shall, solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a). Thus,

the four elements of a prima facie claim under the Rehabilitation Act are: (1) that the

plaintiff is disabled under the Act; (2) that she would be "otherwise qualified" to participate

in the program; (3) that the program receives federal financial assistance; and (4) that the

program has discriminated against the plaintiff. Schrader v. Fred A. Ray, M.D., P.C., 296

F.3d 968, 971 (10th Cir.2002); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151

(10th Cir.1999); McGeshick v. Principi 357 F.3d 1146, 1150 (10th Cir. 2004). Additionally,

because all claims except Plaintiffs’ claims for compensatory damages under the

Rehabilitation Act were dismissed, Plaintiffs must prove intentional discrimination in order

to recover compensatory damages. Powers v. MJB Acquisition Corp., 184 F.3d 1147

(compensatory damages not available under section 504 of the Rehabilitation Act unless

intentional discrimination); Tyler v. City of Manhattan, 118 F.3d 1400 (10th Cir.1997)

(compensatory damages for mental and emotional injury not available under ADA absent

intentional discrimination).

II. Plaintiffs Fail to Meet the Elements Necessary to Sustain a Rehabilitation Act Claim for Damages.

A.

The 2004 Statute Provided Marcia Barber with an Appropriate Avenue

to Designate an Alternate to Supervise her Daughter’s Driving.

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A facially neutral governmental restriction does not deny "meaningful access" to the
disabled simply because disabled persons are more likely to be affected by it. Patton v. TIC
United Corp. 77 F.3d 1235, 1246 (10th Cir. 1996) citing Alexander v. Choate, 469 U.S. 287,
303-04 (1985) (holding that a ceiling on the number of inpatient hospital days paid for by
Tennessee's Medicaid program did not deny the disabled meaningful access to Medicaid
services). Moreover, the Rehabilitation Act does not require state officials to perceive of
every possible scenario when a regulation might impact the disabled.
At the same time, the position urged by respondents--that we interpret § 504 to reach all action disparately affecting the handicapped--is also troubling. Because the handicapped typically are not similarly situated to the nonhandicapped, respondents' position would in essence require each recipient of federal funds first to evaluate the effect on the handicapped of every proposed action that might touch the interests of the handicapped, and then to consider alternatives for achieving the same objectives with less severe disadvantage to the handicapped. The formalization and policing of this process could lead to a wholly unwieldy administrative and adjudicative burden….. Had Congress intended § 504 to be a National Environmental Policy Act for the handicapped, requiring the preparation of "Handicapped Impact Statements" before any action was taken by a grantee that affected the handicapped, we would expect some indication of that purpose in the statute or its legislative history. Yet there is nothing to suggest that such was Congress' purpose. Alexander v. Choate 469 U.S. 287. “Section 504 seeks to assure evenhanded treatment
and the opportunity for handicapped individuals to participate in and benefit from programs
receiving federal assistance.” Alexander v. Choate 469 U.S. at 287 citing Southeastern
Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980
(1979)(emphasis added). It does not require the state to evaluate the impact of facially
neutral regulations and determine how they can be implemented in a way most favorable
to the handicapped.
Tennessee's refusal to pursue this course does not, as respondents suggest, inflict a "gratuitous" harm on the handicapped. On the contrary,
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to require that the sort of broad-based distributive decision at issue in this case always be made in the way most favorable, or least disadvantageous, to the handicapped, even when the same benefit is meaningfully and equally offered to them, would be to impose a virtually unworkable requirement… Alexander 469 U.S. 287, 105 S.Ct. at 724. Plaintiffs maintain that Marcia was denied access to the program that allowed her to supervise her daughter’s driving because she was not allowed to designate her father as a supervisor. However, she was not denied access to a governmental benefit. She had the same ability to designate a supervising driver as a non-disabled parent without a license. Marcia Barber always had the authority to designate any licensed driver over 21 of her choosing to supervise her daughter’s driving. Under the former statute, she could have executed a limited guardianship or power of attorney empowering and limiting another individual to supervise the driving. She could have made the appointment without court intervention. See Colo. Rev. Stat. § 15-14-102 (4) (“Guardian” means an individual at least twenty-one years of age, resident or non-resident, who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or by court. The term includes a limited, emergency, and substitute guardian but not a guardian ad litem.”); Colo. Rev. Stat. § 15-14-105 (A parent or guardian of a minor or incapacitated person, by power of attorney, may delegate to another person, for a period not exceeding twelve months, any power regarding care, custody, or property of the minor….); Colo. Rev. Stat. § 15-14-201 (“a person becomes a guardian of a minor by appointment by a parent or guardian by will or written instrument or upon appointment by the court….) (A copy of these statutes is attached as Exhibit K). Thus, the Plaintiffs had, but never exercised, the option of appointing Juliana’s grandfather as a limited guardian solely for the purpose of supervising Juliana’s driving under the previous statute. Indeed, she admits that she never even explored the
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possibility of executing a document that would not relinquish any parental rights, but would instead simply empower another individual to supervise the driving. (Exhibit C at p. 51, ll. 13-17). She never inquired as to whether she could simply file a piece of paper with the Department of Motor Vehicles saying she was giving a limited guardianship for the purpose of supervising her daughter’s driving. (Exhibit C at 55-56, ll. 24-25, ll. 1-5).
The additional requirement of a written instrument is not onerous. See e.g. Theriault v. Flynn 162 F.3d 46 (1st Cir. 1998) (State did not discriminate against motorist with cerebral palsy, in violation of Americans with Disabilities Act, when motorist was required to take road test, not ordinarily required, before driver's license allowing driving with hand controls was renewed); Bailey v. Anderson 79 F.Supp.2d 1254 (D.Kan. 1999) (State did not discriminate against motorist with vision impairment in violation of ADA by requiring her to submit report from driving instructor regarding her driving ability as condition for instruction permit); Briggs v. Walker 88 F.Supp.2d 1196 (D.Kan. 2000) (State director of vehicles did not discriminate against wheelchair restricted applicant for instruction permit to operate vehicle in violation of the ADA, by requiring that applicant submit medical certification as to her ability to operate vehicle safely before permit would be granted).
B. Assuming Arguendo 2004 Statute Discriminated, Defendants Immediately Amended the Statute and Offered Marcia Barber an Appropriate Modification.
It is undisputed that when Marcia Barber raised the issue, the Defendants implemented proceedings to change the statute. The Department of Motor Vehicles took immediate action to support the amendment of the statute to address the legislative oversight. In order to resolve the immediate issue of Julianna’s driving until amendment of the statute, Marcia Barber spoke with the Colorado Attorney General himself. Mr. Suthers
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advised Marcia Barber that he was certain that he could assist her in solving her immediate situation until the law was changed. He discussed with Marcia Barber the possibility of signing or drafting some sort of document or limited delegation of authority that would comply with the spirit of the statute to allow Marcia Barber’s father to supervise the driving until such time as the statute was amended. (Exhibit E, Deposition of John Suthers at 17-18, 20, 27-28, 31-32). However, Marcia Barber admits that she was unwilling to sign any document whatsoever to allow her father to supervise the driving. Indeed, she made this point very clear to Mr. Suthers. (Exhibit C, Deposition of Marcia Barber at p. 51, ll. 5-24; p. 55, ll. 19-25; p. 56, ll. 1-5; Exhibit E, Deposition of Suthers at pp. 18, 22, 24-25, 26-27, 29, 33-34, 35). Suthers specifically advised Marcia Barber that she would not be relinquishing any parental rights and that they simply needed to come up with some device by which she would designate the grandfather of the child, for purposes of driving with the child, to comply with the statute. (Exhibit E, Deposition of Suthers at p. 18, ll. 1-18; p. 22, ll. 12-23). Thus, it is undisputed that Plaintiffs were offered accommodations relating to the 2004 statute. Despite acknowledging that it was important that such accommodation be in writing, they refused to sign any document whatsoever to facilitate the requested accommodation until August of 2005 when Marcia Barber executed a document allowing her father to supervise Julianna’s driving.
The Defendants remained willing to make accommodations to address the immediate driving question while they worked to get the statute amended. Even the Colorado Attorney General himself indicated that Marcia Barber could sign a very limited document rather than go through a formal guardianship process in order to allow an alternate to supervise the driving.
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III. Plaintiff’s Claim for Compensatory Damages under the Rehabilitation Act Fails because they have failed to Produce any Evidence of Intentional Discrimination and they Acknowledge that there was no Intentional Discrimination.
A plaintiff cannot obtain compensatory damages from the state under the Rehabilitation Act without showing intentional discrimination. Powers v. MJB Acquisition Corp., 184 F. 3d at 1153 (entitlement to compensatory damages under § 504 of the Rehabilitation Act requires proof of intentional discrimination). Plaintiffs admit no intentional discrimination occurred. Thus, their remaining claim for damages fails. Tyler v. Manhattan, 118 F.3d at 1402-03. In Tyler, after concluding that a plaintiff must demonstrate intentional discrimination to recover compensatory damages under the Rehabilitation Act, the Tenth Circuit affirmed the dismissal of a claim for compensatory damages under the ADA because the plaintiff merely alleged acts that had a disparate impact upon the disabled.
We have reviewed the pretrial order and agree with the district court that the order does not describe acts of intentional wrongdoing. Instead, it is apparent that the order describes acts and omissions which have a disparate impact on disabled persons in general but not specific acts of intentional discrimination against Tyler in particular. Furthermore, there are no allegations in the pretrial order that the City was motivated by animus toward the disabled generally or Tyler specifically. Tyler v. City of Manhattan 118 F.3d at 1403. Similarly, in this case there is a complete absence of any evidence of intentional discrimination. Indeed, Plaintiffs concede that the gravamen of their claim is based upon a theory of disparate impact. (See Plaintiffs’ Memorandum in Response to Defendants’ Motion to Dismiss, Docket # 17, at pp. 4, 5, 8). While this theory was sufficient to avoid dismissal of Plaintiff’s claims for injunctive relief, it is insufficient here, in the complete absence of any evidence supporting a claim for intentional discrimination.
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Both Plaintiffs concede that the 2004 statute was a mere legislative oversight, and there was no intent to discriminate against the disabled. Moreover, the Defendants undertook extraordinary efforts to change the statute prior to Julianna’s sixteenth birthday. Effective July 1, 2005, the statute was amended to permit a minor driver under 16, who has a minor’s instruction permit, to accumulate driving experience under the supervision of a licensed “grandparent with power of attorney.” Prior to the statutory change, Defendants undertook efforts to accommodate Plaintiffs until the statute was changed. The Senior Director of the Colorado Division of Motor Vehicles investigated the issue. Marcia Barber admits that he was very supportive and understood her issues and pursued an amendment to the statute. She further admits that he could not simply disregard the statute and allow Julianna’s grandfather to supervise because “his hands were tied” as a result of the statutory language. Far from intentionally discriminating, or being deliberately indifferent to her, he did everything he could to accommodate her situation.
Approximately two months after her discussion with Steve Tool, in January of 2005, Marcia Barber called the Colorado Attorney General, John Suthers to discuss the issue. Mr. Suthers advised Marcia Barber that it was pretty clear that this was a legislative oversight and that the statute should be changed and that he was certain that he could assist her in solving her immediate situation until the law was changed. He discussed with her the possibility of signing or drafting some sort of document or limited delegation of authority that would comply with the spirit of the statute to allow Marcia Barber’s father to supervise the driving until such time as the statute was amended. However, Marcia Barber admits that she was unwilling to sign any document whatsoever. The admissions of the Plaintiffs as well as the efforts on behalf of the Defendants to reasonably
17

Case 1:05-cv-00807-REB-CBS Document 62 Filed 11/08/06 USDC Colorado Page 18 of 20
accommodate Marcia Barber belie any claim of intentional discrimination or deliberate indifference. IV. Plaintiffs Admit They have not Sustained any Damages.
Rule 56 "mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322. Even assuming arguendo that Plaintiffs could prove an intentional violation of the Rehabilitation Act, this in and of itself does not entitle them to an award of compensatory damages.
Consequently, we hold that damages liability under section [the ADA] must be based on something more than a mere violation of that provision. There must be some cognizable injury in fact of which the violation is a legal and proximate cause for damages to arise from a single violation. Armstrong v. Turner Industries, Inc. 141 F.3d 554, 562 (5th Cir. 1998). "Compensatory damages are such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury. Damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him." Black's Law Dictionary 390 (6th ed.1990). Here, plaintiffs admit no cognizable injury exists. Marcia Barber testified in her deposition that she was very pleased with the statutory changes and stated “that’s all I ever wanted.” (Exhibit C at p. 75, ll. 3-9). Julianna admits she has not sustained any damages whatsoever. Marcia Barber is claiming emotional distress damages but she has not seen any psychologists, social workers or counselors and has not taken any medications for anything related to anxiety or emotional distress as a result of this incident.
18

Case 1:05-cv-00807-REB-CBS Document 62 Filed 11/08/06 USDC Colorado Page 19 of 20
Thus, even assuming arguendo that Plaintiffs could muster the evidence to prove a violation of the Rehabilitation Act, they admittedly sustained no damage whatsoever.
The only possible damage is the one month delay in obtaining Julianna’s license and the allegation that she had to compress her driving experience into a few months and did not get driving experience in a full range of road conditions. However, the evidentiary record reveals that the Defendants’ efforts permitted Julianna to receive her license in a timely manner. Julianna needed to have a permit for 1 year, and during that year acquire 50 hours of behind the wheel experience. Thus, the earliest date she could have acquired her license was one year after receiving her permit, October 13, 2005. She practiced her driving with various people, including her grandfather, during nine of the thirteen months between receiving her permit and getting her license. She acquired her 50 hours of driving experience in one year and one month from the date she obtained her permit and obtained her driver’s license on November 14, 2005, one month after she was eligible.
CONCLUSION For the reasons set forth above, Plaintiffs’ Second Amended Complaint should be dismissed.
JOHN W. SUTHERS Attorney General
/s/ James X. Quinn ELIZABETH H. McCANN* Deputy Attorney General JAMES X. QUINN* Assistant Attorney General Civil Litigation and Employment Law Section 1525 Sherman Street, 5th Floor Denver, Colorado 80203, Telephone:(303) 866-4307 *Counsel of Record
19

Case 1:05-cv-00807-REB-CBS Document 62 Filed 11/08/06 USDC Colorado Page 20 of 20

CERTIFICATE OF SERVICE

I certify that on November 8, 2006, I electronically filed the foregoing with the Clerk of

Court using the CM/ECF system which will send notification of such filing to the following e-

mail addresses:

Amy F. Robertson arob@foxrob.com

Kevin W. Williams kwilliams@ccdconline.org

/s/ James X. Quinn

20

 </s> Case 1:05-cv-00807-REB-CBS Document 25 Filed 10/17/2005 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn
Civil Action No. 05-cv-00807-REB-CBS
JULIANNA BARBER, by and through her next friend, Marcia Barber; MADELINE BARBER, by and through her next friend, Marcia Barber; MARCIA BARBER; COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit corporation; and AMERICAN COUNCIL OF THE BLIND OF COLORADO, INC., a Colorado non-profit corporation,
Plaintiffs,
v.
STATE OF COLORADO, DEPARTMENT OF REVENUE; STATE OF COLORADO, DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES; M. MICHAEL COOK, in her individual and official capacity as Executive Director of the Colorado Department of Revenue; and STEVE TOOL, in his individual and official capacity as Senior Director of the Colorado Division of Motor Vehicles,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
Blackburn, J.
The matter before me is Defendants’ Motion to Dismiss [#10], filed July 11, 2005.
By this motion, defendants seek to dismiss plaintiffs’ claims under Title II of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131- 12134, and section 504 of
the Rehabilitation Act, 29 U.S.C. § 794, for failure to state claims on which relief may
be granted. I grant the motion in part and deny it in part.
Plaintiff Marcia Barber has retinitis pigmentosa, a condition which substantially

Case 1:05-cv-00807-REB-CBS Document 25 Filed 10/17/2005 Page 2 of 9
limits her in the major life activity of seeing, among others. On September 8, 2004, Marcia’s daughter, plaintiff Julianna Barber, turned 15 years old. Soon thereafter she obtained a minor’s instruction permit and completed a driver’s education course. Having satisfied these statutory prerequisites, she was eligible to drive under the supervision of a parent, stepparent, or legal guardian who held a valid driver’s license. See § 42-2-106(b), C.R.S. (2004). However, because Marcia does not have a driver’s license due to her disability, Julianna was not able to participate in this program. Although Marcia requested that she be allowed to designate Julianna’s grandfather to supervise her driving, defendants refused this request. Nevertheless, the statute was subsequently amended, effective July 1, 2005, to also permit a grandparent with power of attorney to supervise a minor’s driving.
Marcia, Julianna, and Marcia’s younger daughter, Madeline, together with the Colorado Cross-Disability Coalition and the American Council of the Blind of Colorado, filed this lawsuit claiming that the statute violated the ADA and the Rehabilitation Act. They seek compensatory, injunctive, and declaratory relief. Defendants have moved to dismiss these causes of action.
In ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), I must determine whether the allegations set forth in the complaint, if true, are sufficient to state a claim within the meaning of Fed.R.Civ.P. 8(a). “[T]he complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see also Daigle
2

Case 1:05-cv-00807-REB-CBS Document 25 Filed 10/17/2005 Page 3 of 9
v. Shell Oil Co., 972 F.2d 1527, 1533 (10th Cir.1992). The complaint must be construed in the light most favorable to plaintiffs, and its allegations must be taken as true. Robinson v. City and County of Denver 39 F. Supp. 2d 1257, 1262-1263 (D. Colo. 1999) (citing Daigle, 972 F.2d at 1533). However, I need not assume that plaintiffs “can prove facts which [they] ha[ve] not alleged or that the defendants have violated the . . . laws in ways that have not been alleged.” Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983).
This lawsuit implicates both Title II of the ADA and section 504 of the Rehabilitation Act, which “impose identical obligations,” Cisneros v. Wilson, 226 F.3d 1113, 1124 (10th Cir. 2000), overruled on other grounds by Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), and, thus, are construed similarly, see Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th Cir. 1999). Both statutes prohibit discrimination against a “qualified individual with a disability” by reason of such disability. See 42 U.S.C. § 12132, 29 U.S.C. § 794(a). Thus, to assert a cause of action under either statute, a plaintiff must prove:
(1) That he [or she] is a qualified individual with a disability; (2) That he [or she] was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability. Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999) (quoting Tyler v. City of
3

Case 1:05-cv-00807-REB-CBS Document 25 Filed 10/17/2005 Page 4 of 9
Manhattan, 849 F.Supp. 1429, 1439 (D. Kan. 1994)) (alterations in Gohier). See also Weinreich v. Los Angeles County Metropolitan Transportation Authority, 114 F.3d 976, 978 (9th Cir. 1997) (prescribing the same elements for cause of action under the
Rehabilitation Act, with additional requirement that plaintiff prove program receives
federal financial assistance).
Defendants argue first that none of the individual plaintiffs is a “qualified
individual with a disability.” A qualified individual with a disability is “an individual with
a disability who, with or without reasonable modifications to rules, policies, or practices,
. . . meets the essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.” 42 U.S.C. §
12131(2); see also 29 U.S.C. § 705(20). Defendants argue that Marcia is not qualified under the statute because she is ineligible to hold a driver’s license.1 This circular
argument ignores the fact that Marcia has requested an accommodation to the statute’s
rules to allow her to designate another licensed driver to supervise Julianna’s driving
instruction. Such accommodation would allow her to participate in the program, which already mandates parental participation, either personally or by proxy.2 I therefore find
1 For purposes of a disability discrimination claim, it does not particularly matter that the statute also impacts non-disabled persons who also do not have driver’s licenses. The Supreme Court has rejected “comparator” analysis in these types of cases. See McGary v. City of Portland, 386 F.3d 1259, 1266 (9th Cir. 2004) (citing Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999)). The inquiry is “not whether the benefits to persons with disabilities and to others are actually equal, but whether those with disabilities are as a practical matter able to access benefits to which they are legally entitled.” Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2nd Cir. 2003), cert. denied, 124 S.Ct. 1658 (2004).
2 Defendants argue also that the process of obtaining a legal guardianship or power of attorney is not onerous and that the relinquishment of parental rights occasioned thereby may be limited solely to the right to supervise the minor while driving. While these arguments may be persuasive on summary judgment, at this early juncture, I must accept plaintiffs’ representations that these alternative options are
4

Case 1:05-cv-00807-REB-CBS Document 25 Filed 10/17/2005 Page 5 of 9
that the complaint adequately alleges both that Marcia is a qualified individual with a disability and that the statute excluded her from participation in the program.
However, I find that Julianna and Madeline cannot assert viable ADA or Rehabilitation Act claims. It is undisputed that neither has a disability herself. Julianna and Madeline argue nevertheless that the defendants have discriminated against them on the basis of their association with their mother. Title I of the ADA prohibits such associational discrimination. See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1082 (10th Cir. 1997) (citing 42 U.S.C. § 12112(b)(4)). However, to invoke the protections of that section, a plaintiff must show an employment relationship with the defendant. See McGuinness v. University of New Mexico School of Medicine, 170 F.3d 974, 979 (10th Cir. 1998). Obviously, no such relationship is claimed in this case. Moreover, no similar statutory provision is included in Title II of the ADA. Although applicable regulations provide that public entities may not discriminate against individuals based on their association with a person with a disability, see 28 C.F.R. § 35.130(g), plaintiffs provide no argument or authority to suggest that this regulation creates a cause of action in the absence of express statutory authorization.3 But see Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 47-48 (2nd Cir.
(continued) not reasonable accommodations. 3 Plaintiffs argue instead that Julianna’s and Madeline’s claims pass muster because the Tenth
Circuit has found that standing under Title II extends to the full limits of Article III. See Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004); see also Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n.9, 99 S.Ct. 1601, 1609 n.9, 60 L.Ed.2d 66 (1979) (noting that when “Congress intended standing . . . to extend to the full limits of Art. III, the normal prudential rules do not apply; as long as the plaintiff suffers actual injury as a result of the defendant’s conduct, he is permitted to prove that the rights of another were infringed”). Whatever the legitimacy of this argument in relation to issues of standing, it offers no guidance when considering whether associational discrimination is a substantive claim under Title II.
5

Case 1:05-cv-00807-REB-CBS Document 25 Filed 10/17/2005 Page 6 of 9
1997) (suggesting in dicta that 28 C.F.R. § 35.130(g), although not entitled to controlling weight, might be entitled to due weight, but ultimately finding question irrelevant). I therefore conclude that Julianna’s and Madeline’s individual claims should be dismissed.
Defendants assert further that plaintiffs cannot prove that they were discriminated against solely by reason of disability because there is no evidence that defendants intentionally sought to discriminate against the blind and visually impaired in enacting and enforcing the statute. Plaintiffs counter that they are not asserting claims for disparate treatment under the statute, but rather for disparate impact and for failure to offer a reasonable accommodation. Both theories assert distinct and viable claims under the ADA and the Rehabilitation Act.4 See Alexander v. Choate, 469 U.S. 287, 300-01, 105 S.Ct. 712, 720, 83 L.Ed.2d 661 (1985) (reasonable accommodation claim); Chaffin v. Kansas State Fair Board, 348 F.3d 850, 859-60 (10th Cir. 2003) (disparate impact claims); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 273-77 (2nd Cir. 2003) (noting that plaintiff need not prove disparate impact in order to make out a reasonable accommodation claim), cert. denied, 124 S.Ct. 1658 (2004). Nevertheless, I do not believe that the complaint, with its broad, generalized statement
4 However, I note that the law in this circuit requires a plaintiff to show intentional discrimination to be entitled to compensatory damages in an ADA or Rehabilitation Act suit. See Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999). “[I]ntentional discrimination may be inferred when a policy maker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result from the implementation of the [challenged] policy . . .” Id. (citation and internal quotation marks omitted; second alteration in Powers). Because I will require plaintiffs to redraft their complaint to assert more definitively these claims, plaintiffs would do well, if they intend to seek compensatory damages in this matter, to more particularly allege facts showing deliberate indifference, if they can.
6

Case 1:05-cv-00807-REB-CBS Document 25 Filed 10/17/2005 Page 7 of 9
that plaintiffs were “discriminated against on the basis of disability,” is adequate to put defendants on notice that plaintiffs intend to prosecute such claims. Defendants are entitled to know that which they must defend. I therefore will afford plaintiffs an opportunity to replead their claims to properly assert disparate impact and reasonable accommodation claims.
As for the organizational plaintiffs, defendants’ argument that they lack standing misapprehends the nature of their claims in this lawsuit. The organizations are not suing based on injuries to their own institutional interests, see Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975), but rather based on the interests of their members, see Friends of the Earth v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 704, 145 L.Ed.2d 610 (2000). The complaint asserts that the organizational plaintiffs’ members, including Marcia Barber, “are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.” See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977) (citation and internal quotation marks omitted). However, it is not clear from the complaint that the organizational plaintiffs are seeking the type of relief that would not require participation of their individual members. See id., 97 S.Ct. at 2441. More specifically, although claims for injunctive and declaratory relief may be adjudicated without individual participation of the members of an organizational plaintiff, see id., damages claims cannot, see Warth, 95 S.Ct. 2213-14. Because plaintiffs’ complaint makes only
7

Case 1:05-cv-00807-REB-CBS Document 25 Filed 10/17/2005 Page 8 of 9
a single, general claim for damages, it is impossible to tell whether the organizational plaintiffs also are seeking such relief. When redrafting the complaint, plaintiffs should rectify this confusion.5
Finally, defendants claim that this lawsuit is moot because the recent amendment to the statute allowing a grandparent with power of attorney to supervise a minor’s driving instruction gives plaintiffs all the relief they requested. I disagree. Although an ADA plaintiff is not necessarily entitled to the particular accommodation she requests, see Smith v. Midland Brake, Inc., 180 F.3d 1154, 1177 (10th Cir.1999), the amendment to the statute does not, in fact, constitute the accommodation that Marcia Barber requested. Rather than simply allowing her to designate a substitute supervisor for her daughters’ driving instruction, it requires her to execute a legally binding document to effectuate the transfer of parental authority. I thus cannot say that the amendment moots plaintiffs’ claims.
THEREFORE, IT IS ORDERED as follows: (1) That Defendants’ Motion to Dismiss [#10], filed July 11, 2005, is GRANTED IN PART and DENIED IN PART; (2) That the motion is GRANTED with respect to the claims brought on behalf of Julianna and Madeline Barber, as well as any claim for punitive damages in this matter, and those claims are DISMISSED WITH PREJUDICE; (3) That Julianna Barber and Madeline Barber are DROPPED as named
5 I also agree with defendants that, to the extent the complaint can be read to assert a claim for punitive damages, plaintiffs are not entitled to such. See Barnes v. Gorman, 536 U.S. 181, 189, 122 S.Ct. 2097, 2103, 153 L.Ed.2d 230 (2002).
8

Case 1:05-cv-00807-REB-CBS Document 25 Filed 10/17/2005 Page 9 of 9 plaintiffs in this action, and the case caption is AMENDED accordingly;
(4) That the motion is GRANTED further insofar as plaintiffs will be required to replead as herein specified;
(5) That plaintiffs SHALL FILE an amended complaint by November 7, 2005; and
(6) That in all other respects, the motion is DENIED. Dated October 17, 2005, at Denver, Colorado.
BY THE COURT: /s/ Robert E. Blackburn Robert E. Blackburn United States District Judge
9

 </s> Case: 1:05-cv-00807-REB-CBS As of: 05/16/2010 08:04 PM MDT 1 of 13
NDISPO, TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:05−cv−00807−REB−CBS

Barber et al v. Department of Revenue Assigned to: Judge Robert E. Blackburn Referred to: Magistrate Judge Craig B. Shaffer Case in other court: USCA, 08−01032 Cause: 42:12101 Americans With Disabilities Act (ADA)
Plaintiff

Date Filed: 05/02/2005 Date Terminated: 05/14/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Julianna Barber by and through her next friend Marcia Barber TERMINATED: 10/17/2005

represented by Amy Farr Robertson Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: arob@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin William Williams Colorado Cross−Disability Coalition 655 Broadway #775 Denver, CO 80203 303−839−1775 Fax: 303−839−1782 Email: kwilliams@ccdconline.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Patrick Fox Fox &Robertson, P.C. 104 Broadway #400 Denver, CO 80203 303−595−9700 Fax: 303−595−9705 Email: tfox@foxrob.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ari Reuben Krichiver Smith &West, LLC−Denver 1860 Blake Street Blake Street Terrace #420 Denver, CO 80202 303−391−0100 Fax: 303−391−0102 Email: ari@smithandwest.com TERMINATED: 07/25/2007

Carrie Ann Lucas Colorado Cross−Disability Coalition 655 Broadway #775 Denver, CO 80203 303−839−1775 Fax: 303−839−1782

Case: 1:05-cv-00807-REB-CBS Plaintiff Madeline Barber by and through her next friend Marcia Barber TERMINATED: 10/17/2005
Plaintiff Marcia Barber
Plaintiff Colorado Cross−Disability Coalition a Colorado non−profit corporation

As of: 05/16/2010 08:04 PM MDT 2 of 13
Email: clucas@ccdconline.org ATTORNEY TO BE NOTICED
represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Patrick Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Reuben Krichiver (See above for address) TERMINATED: 07/25/2007
Carrie Ann Lucas (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Patrick Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Reuben Krichiver (See above for address) TERMINATED: 07/25/2007
Carrie Ann Lucas (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Patrick Fox

Case: 1:05-cv-00807-REB-CBS
Plaintiff American Council of the Blind of Colorado, Inc. a Colorado non−profit corporation
Plaintiff Julianna Barber
Plaintiff Madeline Barber

As of: 05/16/2010 08:04 PM MDT 3 of 13
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Reuben Krichiver (See above for address) TERMINATED: 07/25/2007
Carrie Ann Lucas (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin William Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Patrick Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Reuben Krichiver (See above for address) TERMINATED: 07/25/2007
Carrie Ann Lucas (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Patrick Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Reuben Krichiver (See above for address) TERMINATED: 07/25/2007
represented by Amy Farr Robertson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Patrick Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ari Reuben Krichiver

Case: 1:05-cv-00807-REB-CBS

As of: 05/16/2010 08:04 PM MDT 4 of 13
(See above for address) TERMINATED: 07/25/2007

V. Defendant Department of Revenue State of Colorado
Defendant M. Michael Cooke
Defendant M. Michael (I) Cooke
Defendant Steve Tool TERMINATED: 01/20/2006
Defendant

represented by Elizabeth H. McCann Colorado Attorney General's Office−Department of Law 1525 Sherman Street 7th Floor Denver, CO 80203 303−866−3261 Fax: 303−866−5443 Email: beth.mccann@state.co.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Xavier Quinn Colorado Attorney General's Office−Employment Law 1525 Sherman Street 7th Floor Denver, CO 80203 303−866−4307 Email: James.Quinn@state.co.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth H. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Xavier Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth H. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Xavier Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth H. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Xavier Quinn (See above for address)

Case: 1:05-cv-00807-REB-CBS Steve (I) Tool TERMINATED: 01/20/2006
Defendant Motor Vehicle Division
Defendant Joan (I) Vecchi
Defendant Joan Vecchi in her official capacity as Senior Director of the Colorado Division of Motor Vehicles

As of: 05/16/2010 08:04 PM MDT 5 of 13
represented by Elizabeth H. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Xavier Quinn (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth H. McCann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Xavier Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Xavier Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth H. McCann (See above for address)
represented by James Xavier Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth H. McCann (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/02/2005
05/02/2005 05/04/2005 05/04/2005
05/04/2005 05/05/2005

# Docket Text
1 COMPLAINT and jury demand against Department of Revenue (Filing fee $ 250 #259833) , filed by American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition.(bpm, ) (Entered: 05/03/2005)
Summons Issued as to Department of Revenue. (bpm, ) (Entered: 05/03/2005)
2 MOTION for leave to Amend 1 Complaint by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (dlb, ) (Entered: 05/05/2005)
TENDERED Amended Complaint to 2 MOTION for leave to Amend 1 Complaint by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (dlb, ) (Entered: 05/05/2005)
3 ORDER REFERRING CASE to Magistrate Judge Craig B Shaffer by Judge Blackburn. (dlb, ) (Entered: 05/05/2005)
4 MEMORANDUM referring to Magistrate Judge Shaffer : 2 MOTION for leave to Amend 1 Complaint by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability

Case: 1:05-cv-00807-REB-CBS As of: 05/16/2010 08:04 PM MDT 6 of 13

05/10/2005 05/10/2005 05/10/2005 05/12/2005 05/17/2005 07/11/2005 07/11/2005 07/11/2005 07/12/2005 07/13/2005
07/13/2005 08/09/2005
08/31/2005 08/31/2005

Coalition by Judge Robert E. Blackburn on 5/5/05. (dlb, ) (Entered: 05/05/2005)
5 MINUTE ORDER setting Rule 16(b) Scheduling Conference and Rule 26(f) Planning meeting set for 8/16/2005 09:30 AM in Courtroom A 402 before Magistrate Judge Craig B Shaffer by Magistrate Judge Craig B Shaffer on 5/10/05. (dlb, ) (Entered: 05/11/2005)
6 MINUTE ORDER granting 2 MOTION for leave to Amend 1 Complaint by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition by Magistrate Judge Craig B Shaffer on 5/10/05. (dlb, ) (Entered: 05/11/2005)
7 AMENDED COMPLAINT against M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Department of Revenue , filed by American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition.(dlb, ) (Entered: 05/11/2005)
8 NOTICE of Appearance by Kevin William Williams on behalf of plaintiffs (dlb, ) (Entered: 05/13/2005)
9 Amended CERTIFICATE of Mailing by Clerk of Court re 5 MINUTE ORDER setting Rule 16(b) Scheduling Conference and Rule 26(f) Planning meeting set for 8/16/2005 09:30 AM in Courtroom A 402 before Magistrate Judge Craig B Shaffer by Magistrate Judge Craig B Shaffer on 5/10/05. (dlb, ) (Entered: 05/18/2005)
10 First MOTION to Dismiss by Defendants Department of Revenue, Motor Vehicle Division, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool. (McCann, Elizabeth) (Modified on 7/13/2005 to add filer) (dlb, ). (Entered: 07/11/2005)
11 BRIEF in Support re 10 First MOTION to Dismiss filed by Defendants Department of Revenue, Motor Vehicle Division, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool. (Attachments: # 1 Exhibit A# 2 Exhibit B)(McCann, Elizabeth) (Modified on 7/13/2005 to add filer) (dlb, ). (Entered: 07/11/2005)
12 Unopposed MOTION for Leave to File Excess Pages by Defendants Department of Revenue, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool. (Attachments: # 1 Proposed Order (PDF Only))(McCann, Elizabeth) (Entered: 07/11/2005)
13 ORDER granting 12 Unopposed MOTION for Leave to File Excess Pages by Defendants. Signed by Judge Robert E. Blackburn on 7/12/05. (dlb, ) (Entered: 07/12/2005)
14 Unopposed MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Attachments: # 1 Proposed Order (PDF Only) Proposed Order)(Robertson, Amy) (Entered: 07/13/2005)
15 ORDER granting 14 Motion for Extension of Time to File Response to 8/31/05 re: 10 First MOTION to Dismiss by Defendants Department of Revenue, Motor Vehicle Division, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool by Judge Robert E. Blackburn on 7/13/05. (dlb, ) (Entered: 07/13/2005)
16 MINUTE ORDER: Scheduling conference set for August 16, 2005, and all related deadlines are VACATED. ORDERED that parties are to submit a status report with the court within seventy−two (72) hours of receiving a decision by District Judge Blackburn on the dispositive motions by Magistrate Judge Craig B Shaffer on 8/9/05. (dlb, ) (Entered: 08/09/2005)
17 BRIEF in Opposition re 10 First MOTION to Dismiss filed by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Robertson, Amy) (Entered: 08/31/2005)
18 MOTION for Leave to File Excess Pages by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber,

Case: 1:05-cv-00807-REB-CBS As of: 05/16/2010 08:04 PM MDT 7 of 13

09/01/2005 09/12/2005 09/12/2005 09/12/2005 09/13/2005 09/22/2005 10/17/2005
10/25/2005 11/01/2005 11/02/2005
11/02/2005 11/02/2005

Colorado Cross−Disability Coalition. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 08/31/2005)
19 ORDER granting Plas' Unopposed 18 Motion for Leave to Exceed Page Limitation for Memorandum in Opposition to Defts' Motion to Dismiss, memorandum not to exceed 26 pages . Signed by Judge Robert E. Blackburn on 9/1/05. (gms, ) (Entered: 09/01/2005)
20 Unopposed MOTION for Extension of Time to File Response/Reply as to 17 Brief in Opposition to Motion to Dismiss by Defendants Department of Revenue, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (Attachments: # 1 Proposed Order (PDF Only))(McCann, Elizabeth) (Entered: 09/12/2005)
21 MINUTE ORDER denying 20 Unopposed MOTION for Extension of Time to File Response/Reply as to 17 Brief in Opposition to Motion to Dismiss by Defendants by Judge Robert E. Blackburn on 9/12/05. (dlb, ) (Entered: 09/12/2005)
22 Second MOTION for Extension of Time to File Reply to 9/22/05 10 First MOTION to Dismiss by Defendants Department of Revenue, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (Attachments: # 1 Proposed Order (PDF Only))(McCann, Elizabeth) (Modified on 9/13/2005 to correct linkage)(dlb, ). (Entered: 09/12/2005)
23 MINUTE ORDER granting 22 Second MOTION for Extension of Time to File Reply to 9/22/05 10 First MOTION to Dismiss by Defendant by Judge Robert E. Blackburn on 9/13/05. (dlb, ) (Entered: 09/13/2005)
24 REPLY to Response to Motion re 10 First MOTION to Dismiss filed by Defendants Department of Revenue, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (Quinn, James) (Entered: 09/22/2005)
25 ORDER granting in part and denying in part 10 First MOTION to Dismiss by Defendant. The motion is granted with respect to the claims brought on behalf of Julianna and Madeline Barker, as well as any claim for punitive damages, those claims are dismissed with prejudice. That Julianna Barber and Madeline Barber are dropped as plaintiffs. The motion is granted insofar as plas will be required to replead; pla file an amended complaint by 11/7/05. The motion is otherwise denied. Signed by Judge Robert E. Blackburn on 10/17/05. (dlb, ) (Modified on 10/18/2005 to correct typo) (dlb, ). (Entered: 10/18/2005)
26 MOTION for Reconsideration re 25 Order on Motion to Dismiss,, Claims of Julianna and Madeline Barber by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Robertson, Amy) (Entered: 10/25/2005)
27 NOTICE of Entry of Appearance by Carrie Ann Lucas on behalf of all plaintiffs (Lucas, Carrie) (Entered: 11/01/2005)
28 Unopposed MOTION to Continue Deadline to File Amended Complaint re: 7 AMENDED COMPLAINT and 26 MOTION for Reconsideration re 25 Order on Motion to Dismiss,, Claims of Julianna and Madeline Barber by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Modified on 11/3/2005 to add linkage) (dlb, ). (Entered: 11/02/2005)
29 MEMORANDUM referring to Magistrate Judge Shaffer : 28 Unopposed MOTION to Continue Deadline to File Amended Complaint filed by American Council of the Blind of Colorado, Inc., Colorado Cross−Disability Coalition, Julianna Barber, Marcia Barber, Madeline Barber, by Judge Robert E. Blackburn on 11/2/05. (Text Only Entry − No Document Attached) (rebsec, ) (Entered: 11/02/2005)
30 MINUTE ORDER granting 28 Unopposed MOTION to Continue Deadline to File Amended Complaint re: 7 AMENDED COMPLAINT and 26 MOTION for Reconsideration re 25 Order on Motion to Dismiss re: Claims of Julianna and Madeline Barber by Plaintiffs. Pla's shall file amended complaint within two weeks

Case: 1:05-cv-00807-REB-CBS As of: 05/16/2010 08:04 PM MDT 8 of 13

11/14/2005 11/15/2005 11/25/2005 12/09/2005
01/04/2006 01/20/2006 01/23/2006 02/03/2006
02/03/2006 02/17/2006 02/24/2006 02/24/2006

of ruling by Magistrate Judge Craig B Shaffer on 11/2/05. (dlb, ) (Entered: 11/03/2005)
31 Unopposed MOTION For Extension of Time to Respond to Motion to Reconsider by Defendants Department of Revenue, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (Attachments: # 1 Proposed Order (PDF Only))(Quinn, James) (Entered: 11/14/2005)
32 ORDER granting to 11/24/05 31 Unopposed MOTION For Extension of Time to Respond to Motion to Reconsider by Defendants . Signed by Judge Robert E. Blackburn on 11/15/05. (dlb, ) (Entered: 11/15/2005)
33 RESPONSE to Motion re 26 MOTION for Reconsideration re 25 Order on Motion to Dismiss,, Claims of Julianna and Madeline Barber filed by Defendants Department of Revenue, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (Quinn, James) (Entered: 11/25/2005)
34 REPLY to Response to Motion re 26 MOTION for Reconsideration re 25 Order on Motion to Dismiss,, Claims of Julianna and Madeline Barber filed by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Attachments: # 1 Exhibit Proposed Second Amended and Supplemental Complaint)(Robertson, Amy) (Entered: 12/09/2005)
35 ORDER granting 26 MOTION for Reconsideration re 25 Order on Motion to Dismiss,, Claims of Julianna and Madeline Barber by Plaintiffs. Julianna Barber and Madeline Barber are REINSTATED as named parties. Plas shall file amended complaint by 1/20/06 re 7 Amended Complaint. Signed by Judge Robert E. Blackburn on 1/4/06. (dlb, ) (Entered: 01/04/2006)
36 SECOND AMENDED AND SUPPLEMENTAL COMPLAINT against all defendants, filed by American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition.(Robertson, Amy) (Modified on 1/23/2006 to correct entry) (dlb, ). (Entered: 01/20/2006)
37 Docket Annotation re: Party Julianna Barber rep by Amy Farr Robertson, and Madeline Barber rep by Amy Farr Robertson added. Party Joan (I) Vecchi, and Joan Vecchi added. Party Steve Tool and Steve (I) Tool terminated pursuant to the filing of Second Amended and Supplemental Complaint, #36 on 1/20/06. Text only entry − no document attached. (dlb, ) (Entered: 01/23/2006)
38 STIPULATION for Enlargement of Time to Answer Complaint by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Julianna Barber, Madeline Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition, Defendants Department of Revenue, Joan (I) Vecchi, Joan Vecchi, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (Quinn, James) (Entered: 02/03/2006)
39 Utility Setting/Resetting Deadlines/Hearings: Defendants' answers due 2/17/2006. Text only entry − no document attached. (dlb, ) (Entered: 02/06/2006)
40 ANSWER to Amended Complaint by Department of Revenue, Joan (I) Vecchi, Joan Vecchi, M. Michael Cooke, M. Michael (I) Cooke, Motor Vehicle Division.(Quinn, James) (Entered: 02/17/2006)
41 STATUS REPORT Joint Status Report by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Julianna Barber, Madeline Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Robertson, Amy) (Entered: 02/24/2006)
42 Joint MOTION for Hearing/Conference (Scheduling Conference) by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Robertson, Amy) (Entered: 02/24/2006)

Case: 1:05-cv-00807-REB-CBS As of: 05/16/2010 08:04 PM MDT 9 of 13

02/24/2006 02/27/2006 02/27/2006 03/03/2006 04/12/2006 04/14/2006 04/14/2006
04/14/2006 05/17/2006 07/19/2006 07/19/2006 07/19/2006 07/24/2006

43 MEMORANDUM referring to Magistrate Judge Shaffer : 42 Joint MOTION for Hearing/Conference (Scheduling Conference) filed by American Council of the Blind of Colorado, Inc., Colorado Cross−Disability Coalition, Julianna Barber, Marcia Barber, Madeline Barber, by Judge Robert E. Blackburn on 2/24/06. (Text Only Entry − No Document Attached) (rebsec, ) (Entered: 02/24/2006)
44 MINUTE ORDER granting 42 Joint MOTION for Hearing/Conference (Scheduling Conference). Scheduling Conference set for 3/15/06 at 4:00 p.m. in Courtroom A−402. Signed by Magistrate Judge Craig B Shaffer on 2/27/06. (dlb, ) (Entered: 02/27/2006)
45 Utility Setting/Resetting Deadlines/Hearings: Scheduling Conference set for 3/15/2006 04:00 PM in Courtroom A 402 before Magistrate Judge Craig B Shaffer. Text only entry − no document attached. (dlb, ) (Entered: 02/27/2006)
46 MINUTE ORDER resetting Scheduling Conference set for 4/14/2006 03:45 PM in Courtroom A 402 before Magistrate Judge Craig B Shaffer by Magistrate Judge Craig B Shaffer on 3/3/06. (dlb, ) (Entered: 03/03/2006)
47 Proposed Scheduling Order by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Julianna Barber, Madeline Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Robertson, Amy) (Entered: 04/12/2006)
48 Trial Preparation Conference ORDER: Jury Trial set for 3/5/2007 08:30 AM in Courtroom A 701 before Judge Robert E. Blackburn. Trial Preparation Conference set for 2/16/2007 at 09:30 AM in Courtroom A 701 before Judge Robert E. Blackburn. Signed by Judge Robert E. Blackburn on 4/14/06. (gms, ) (Entered: 04/14/2006)
49 Minute Entry for proceedings held before Judge Craig B Shaffer : Scheduling Conference held on 4/14/2006 Discovery due by 9/25/2006. Dispositive Motions due by 10/25/2006. Settlement Conference set for 5/24/2006 03:30 PM before Magistrate Judge Craig B Shaffer. Final Pretrial Conference set for 1/11/2007 10:00 AM before Magistrate Judge Craig B Shaffer. Trial Preparation Conference set for 2/16/2007 at 09:30 AM before Judge Robert E. Blackburn. Jury Trial set for 3/5/2007 08:30 AM before Judge Robert E. Blackburn. (Court Reporter FTR − Ellen Miller.) (gms, ) (Entered: 04/17/2006)
50 SCHEDULING ORDER:Signed by Magistrate Judge Craig B Shaffer on 4/14/06. (gms, ) (Entered: 04/17/2006)
51 MINUTE ORDER: VACATING Settlement Conference set for 05/24/2006 by Magistrate Judge Craig B Shaffer on 5/17/06. (dln, ) (Entered: 05/17/2006)
52 STIPULATION of Dismissal Without Prejudice of Certain Claims by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Julianna Barber, Madeline Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Robertson, Amy) (Entered: 07/19/2006)
53 Joint MOTION to Amend/Correct/Modify 50 Scheduling Order by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 07/19/2006)
54 MEMORANDUM referring to Magistrate Judge Shaffer : 53 Joint MOTION to Amend/Correct/Modify 50 Scheduling Order filed by American Council of the Blind of Colorado, Inc., Colorado Cross−Disability Coalition, Julianna Barber, Marcia Barber, Madeline Barber, by Judge Robert E. Blackburn on 7/19/06. (Text Only Entry − No Document Attached) (rebsec, ) (Entered: 07/19/2006)
55 ORDER OF DISMISSAL: re: 52 STIPULATION of Dismissal Without Prejudice of Certain Claims by Plaintiffs. Dismissing without prejudice all claims under Title II of the Americans with Disabilities Act and all claims of plaintiffs, Madeline Barber, the Colorado Cross−Disability Coalition and the American Council of the Blind of Colorado, Inc. Signed by Judge Robert E. Blackburn on 7/24/06. (dln, )

Case: 1:05-cv-00807-REB-CBS As of: 05/16/2010 08:04 PM MDT 10 of 13

07/25/2006 08/07/2006 10/19/2006
10/20/2006
10/26/2006 11/08/2006 11/08/2006
11/27/2006 11/27/2006 11/28/2006
12/18/2006 01/02/2007 01/05/2007

(Entered: 07/24/2006)
56 MINUTE ORDER granting 53 Joint MOTION to Amend/Correct/Modify 50 Scheduling Order. Rule 26(a)(2) affirmative disclosures by 8/25/06; Rebuttal expert disclosures by 9/22/06 by Magistrate Judge Craig B Shaffer on 7/25/06. (dln, ) (Entered: 07/25/2006)
57 NOTICE of Entry of Appearance of Timothy Patrick Fox by Amy Farr Robertson on behalf of all plaintiffs (Robertson, Amy) (Entered: 08/07/2006)
58 Joint MOTION For Extension of Time to TO FILE BRIEFS RELATING TO DISPOSITIVE MOTIONS by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 10/19/2006)
59 MEMORANDUM regarding 58 Joint MOTION For Extension of Time to TO FILE BRIEFS RELATING TO DISPOSITIVE MOTIONS filed by Julianna Barber, Marcia Barber, Madeline Barber, Colorado Cross−Disability Coalition, American Council of the Blind of Colorado, Inc. by Judge Robert E. Blackburn on 10/20/06. (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Craig B Shaffer (rebsec, ) (Entered: 10/20/2006)
60 MINUTE ORDER granting 58 Joint Motion for Extension of Time to file Briefs Relating to Dispositive Motion to on or before 11/8/06, by Magistrate Judge Craig B Shaffer on 10/26/06.(erv, ) (Entered: 10/27/2006)
61 MOTION for Summary Judgment by Defendants Department of Revenue, Joan (I) Vecchi, Joan Vecchi, M. Michael Cooke, M. Michael (I) Cooke, Motor Vehicle Division. (Quinn, James) (Entered: 11/08/2006)
62 BRIEF in Support re 61 MOTION for Summary Judgment filed by Defendants Department of Revenue, Joan (I) Vecchi, Joan Vecchi, M. Michael Cooke, M. Michael (I) Cooke, Motor Vehicle Division. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K)(Quinn, James) (Entered: 11/08/2006)
63 Unopposed MOTION for Leave to File Excess Pages FOR MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT by Plaintiffs Julianna Barber, Marcia Barber. (Attachments: # 1 Proposed Order (PDF Only))(Robertson, Amy) (Entered: 11/27/2006)
64 MINUTE ORDER denying 63 Pla's Unopposed Motion for Leave to File Excess Pages in Opposition to Dfts Motion for Summary Judgment, by Judge Robert E. Blackburn on 11/27/06.(erv, ) (Entered: 11/27/2006)
65 BRIEF in Opposition re 61 MOTION for Summary Judgment filed by Plaintiffs Julianna Barber, Madeline Barber, Julianna Barber, Madeline Barber. (Attachments: # 1 Exhibit 1: Stipulations# 2 Exhibit 2: M. Barber Depo. Excerpts# 3 Exhibit 3: Tool Depo Excerpts# 4 Exhibit 4: Tool Letter# 5 Exhibit 5: M. Barber Declaration# 6 Exhibit 6: Suthers Depo Excerpts# 7 Exhibit 7: Dodd Letter# 8 Exhibit 8: J. Barber Declaration)(Robertson, Amy) (Entered: 11/28/2006)
66 REPLY to Response to Motion re 61 MOTION for Summary Judgment filed by Defendants Department of Revenue, Joan (I) Vecchi, Joan Vecchi, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (Attachments: # 1 Exhibit L)(Quinn, James) (Entered: 12/18/2006)
67 NOTICE of Entry of Appearance by Ari Reuben Krichiver on behalf of all plaintiffs (Krichiver, Ari) (Entered: 01/02/2007)
68 Proposed Pretrial Order by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition. (Robertson, Amy) (Entered: 01/05/2007)

Case: 1:05-cv-00807-REB-CBS As of: 05/16/2010 08:04 PM MDT 11 of 13

01/11/2007 01/11/2007 02/14/2007
02/16/2007
02/20/2007 05/14/2007 05/22/2007
05/29/2007 06/01/2007 06/11/2007 06/12/2007 06/21/2007

69 Courtroom Minutes/Minute Order for proceedings held before Magistrate Judge Craig B Shaffer. Final Pretrial Conference held on 1/11/2007: The final pretrial order is signed and entered with interlineations. (Court Reporter FTR − Ben Van Dyke) (cbscd) (Entered: 01/11/2007)
70 PRETRIAL ORDER: Dfts Motion for Summary Judgment is pending before the Court; Discovery has been completed ; Trial is to a Jury estimated to last three days. Signed by Magistrate Judge Craig B Shaffer on 1/11/07. (erv, ) (Entered: 01/11/2007)
71 Joint STATUS REPORT for Trial Preparation Conference by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition, Defendants Department of Revenue, Joan (I) Vecchi, Joan Vecchi, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (McCann, Elizabeth) (Entered: 02/14/2007)
72 COURTROOM Minute Entry for proceedings held before Judge Robert E. Blackburn : Trial Preparation Conference set on 2/16/2007 is VACATED without further date.That counsel shall contact the courts administrative assistant, Ms. Susan Schmitz, on Tuesday, February 20, 2007, at 10:00 a.m., to schedule this matter for trial and trial preparation conference. (Court Reporter Suzanne Claar.) (erv, ) (Entered: 02/16/2007)
73 SECOND TRIAL PREPARATION CONFERENCE ORDER, Reset Hearings: FOUR DAY Jury Trial set for 6/25/2007 08:30 AM in Courtroom A 701 before Judge Robert E. Blackburn.,Trial Preparation Conference set for 6/8/2007 at 09:00 AM in Courtroom A 701 before Judge Robert E. Blackburn. Signed by Judge Robert E. Blackburn on 2/20/07. (erv, ) (Entered: 02/20/2007)
74 ORDER granting 61 Dfts Motion for Summary Judgment. That plaintiffs' sole remaining claim for compensatory damages under the Rehabilitation Act is DISMISSED WITH PREJUDICE; That judgment SHALL ENTER on behalf of defendants, State of Colorado,. Signed by Judge Robert E. Blackburn on 5/14/07.(erv, ) (Entered: 05/14/2007)
75 JUDGMENT by Clerk in favor of Department of Revenue, Motor Vehicle Division, Joan Vecchi, Joan (I) Vecchi, M. Michael Cooke, M. Michael (I) Cooke against American Council of the Blind of Colorado, Inc., Colorado Cross−Disability Coalition, Julianna Barber, Madeline Barber, Marcia Barber on Dfts Motion for Summary Judgment. Plas sole remaining claim for compensatory damages under the rehabilitation Act is Dismissed With Prejudice. Signed by Stephen P. Ehrlich, Chief Deputy Clerk, on 5/22/07. (erv, ) (Entered: 05/22/2007)
76 MOTION for Reconsideration re 74 Order on Motion for Summary Judgment, 75 Clerk's Judgment,, by Plaintiffs Julianna Barber, Julianna Barber, Marcia Barber. (Robertson, Amy) (Entered: 05/29/2007)
77 MOTION for Costs by Defendants Department of Revenue, Joan (I) Vecchi, Joan Vecchi, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Quinn, James) (Entered: 06/01/2007)
78 Unopposed MOTION to Vacate 77 MOTION for Costs Hearing, Unopposed MOTION for Costs by Defendants Department of Revenue, Joan (I) Vecchi, Joan Vecchi, M. Michael Cooke, M. Michael (I) Cooke, Motor Vehicle Division. (Attachments: # 1 Proposed Order (PDF Only))(Quinn, James) (Entered: 06/11/2007)
79 MINUTE ORDER granting 77 Dfts Motion for Costs and they are awarded $673.30 in costs; finding as moot 78 Motion to Vacate ; finding as moot 78 Motion for Costs, by Judge Robert E. Blackburn on 6/12/07.(erv, ) (Entered: 06/12/2007)
80 RESPONSE to Motion re 76 MOTION for Reconsideration re 74 Order on Motion for Summary Judgment, 75 Clerk's Judgment,, filed by Defendants Department of Revenue, Joan (I) Vecchi, Joan Vecchi, M. Michael Cooke, M. Michael (I) Cooke, Steve Tool, Steve (I) Tool, Motor Vehicle Division. (McCann, Elizabeth) (Entered: 06/21/2007)

Case: 1:05-cv-00807-REB-CBS As of: 05/16/2010 08:04 PM MDT 12 of 13

07/02/2007
07/24/2007 07/25/2007 07/25/2007 07/25/2007 07/25/2007 01/24/2008 02/04/2008 02/06/2008 02/06/2008
02/06/2008 02/08/2008 02/12/2008 02/12/2008 02/06/2009 04/15/2009

81 REPLY to Response to Motion re 76 MOTION for Reconsideration re 74 Order on Motion for Summary Judgment, 75 Clerk's Judgment,, Plaintiffs Reply Brief in Support of Their Motion to Reconsider and to Alter Judgment filed by Plaintiffs Julianna Barber, Madeline Barber, Colorado Cross−Disability Coalition. (Fox, Timothy) (Entered: 07/02/2007)
82 MOTION to Withdraw as Attorney by Plaintiffs Julianna Barber, Julianna Barber, Marcia Barber. (Krichiver, Ari) (Entered: 07/24/2007)
83 MEMORANDUM regarding 82 MOTION to Withdraw as Attorney filed by Julianna Barber, Marcia Barber by Judge Robert E. Blackburn on 7/25/07 (Text Only Entry − No Document Attached)Motions referred to Magistrate Judge Craig B Shaffer. (rebsec, ) (Entered: 07/25/2007)
84 Proposed MOTION for Order to Withdraw as Counsel of Record by Plaintiffs Julianna Barber, Julianna Barber, Marcia Barber. (Krichiver, Ari) (Entered: 07/25/2007)
85 Docket Annotation TERMINATING 84 Proposed MOTION for Order to Withdraw as Counsel of Record, This was filed incorrectly as a Motion and it should have been an attached Proposed Order to the Motion in PDF Format Text only entry − no document attached. (erv, ) (Entered: 07/25/2007)
86 MINUTE ORDER granting 82 Motion to Withdraw as Attorney. Attorney Ari Reuben Krichiver terminated, by Magistrate Judge Craig B Shaffer on 7/25/07.(erv, ) (Entered: 07/25/2007)
87 ORDER denying 76 Pla's Motion for Reconsideration and Alter Judgment. Signed by Judge Robert E. Blackburn on 1/24/08.(erv, ) (Entered: 01/24/2008)
88 NOTICE OF APPEAL as to 74 Order, 75 Judgment and 87 Order denying motion to reconsider by Plaintiffs Julianna Barber, Julianna Barber, Marcia Barber (Robertson, Amy) Modified on 2/6/2008 to create a link to the orders being appealed. (bjr2, ). (Entered: 02/04/2008)
89 Docket Annotation re: 88 Notice of Appeal as to 74 Order, 75 Judgment and 87 Order denying motion to reconsider by plaintiffs. The notice of appeal docket entry was modified to create a link to the orders being appealed. Text only entry − no document attached (bjr2, ) (Entered: 02/06/2008)
90 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 88 Notice of Appeal filed by Julianna Barber, Marcia Barber to the U.S. Court of Appeals. (Retained counsel; Fees not paid) (Attachments: # 1 Docket Sheet, # 2 Preliminary Record including Notice of Appeal)(bjr2, ) (Entered: 02/06/2008)
91 USCA Case Number 08−1032 for 88 Notice of Appeal filed by Julianna Barber, Marcia Barber. Appellant has 30 days to either pay the filing fee or file a proper 1915 motion in the district court. (bjr2, ) (Entered: 02/07/2008)
92 USCA Appeal Fees (USCA Case No. 08−1032); received payment of $ 455, receipt number 7598 re 88 Notice of Appeal filed by Julianna Barber, Marcia Barber (bjr, ) (Entered: 02/08/2008)
93 TRANSCRIPT ORDER FORM re 88 Notice of Appeal by Plaintiffs American Council of the Blind of Colorado, Inc., Julianna Barber, Madeline Barber, Julianna Barber, Madeline Barber, Marcia Barber, Colorado Cross−Disability Coalition (Robertson, Amy) (Entered: 02/12/2008)
94 LETTER TO USCA and all counsel certifying the record is complete as to 88 Notice of Appeal filed by Julianna Barber, Marcia Barber. ( Appeal No. 08−1032) (bjr, ) (Entered: 02/12/2008)
95 NOTICE of Change of Address by Amy Farr Robertson (Robertson, Amy) (Entered: 02/06/2009)
96 USCA Opinion and Judgment, affirming the judgment of the district court as to 88 Notice of Appeal filed by Julianna Barber, Marcia Barber : (USCA Case No. 08−1032) (This document is not the Mandate) (Attachments: # 1 Judgment, # 2

Case: 1:05-cv-00807-REB-CBS As of: 05/16/2010 08:04 PM MDT 13 of 13

05/07/2009

Cover Letter)(gms, ) (Entered: 04/16/2009)
97 MANDATE of USCA as to 88 Notice of Appeal filed by Julianna Barber, Marcia Barber, 96 USCA Order/Opinion/Judgment: Affirmed (USCA Case No. 08−1032) (bjrsl, ) (Entered: 05/07/2009)

 </s> Court: Case Title: Appeal From: Date Filed:
Case Number: Case Type: Case Subtype:

This docket is current through 12/08/2008.
US COURT OF APPEALS FOR THE TENTH CIRCUIT BARBER, ET AL v. STATE OF CO DEPT. OF REVENUE, ET AL UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO 02/06/2008 CASE INFORMATION
08-1032 APPEALS CIVIL PRIVATE

Nature of Suit: Key Nature of Suit:

3440 OTHER CIVIL RIGHTS CIVIL RIGHTS; OTHER FEDERAL CIVIL RIGHTS (110.45) LOWER COURT INFORMATION

District: Lower Court Docket Number: Trial Judge(s): Court Reporter(s): Date Filed: Date NOA Filed:

1082-1 1:05-CV-00807-REB-CBS ROBERT E. BLACKBURN,, U.S. DISTRICT JUDGE CHARLOTTE HOARD 05/02/2005 02/04/2008
NAMES

Name:
Type: Attorney: Attorney Phone:

JULIANNA BARBER, BY AND THROUGH HER NEXT FRIEND, MARCIA BARBER PLAINTIFF - APPELLANT TIMOTHY PATRICK FOX, ESQ. 303-595-9700

Firm Name: Firm Address:
Attorney: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Attorney: Attorney Phone: Firm Name: Firm Address:
Name: Type: Attorney: Attorney Phone: Attorney: Attorney: Attorney Phone:
Name:
Type: Attorney: Attorney Phone: Firm Name:
Firm Address:
Firm Phone: Attorney: Firm Name:
Firm Address:
Firm Phone:
Name: Type: Attorney:

FOX & ROBERTSON, P.C. 3801 EAST FLORIDA AVENUE SUITE 400 DENVER, CO 80210 CARRIE ANN LUCAS COLORADO CROSS DISABILITY COALITION 655 BROADWAY 775 DENVER, CO 80203 AMY FARR ROBERTSON 303-595-9700 FOX & ROBERTSON, P.C. 3801 EAST FLORIDA AVENUE SUITE 400 DENVER, CO 80202 KEVIN W. WILLIAMS 303-839-1775 COLORADO CROSS DISABILITY COALITION 655 BROADWAY 775 DENVER, CO 80203
MARCIA BARBER PLAINTIFF - APPELLANT TIMOTHY PATRICK FOX, ESQ. 303-595-9700 CARRIE ANN LUCAS KEVIN W. WILLIAMS 303-839-1775
STATE OF COLORADO DEPARTMENT OF REVENUE, STATE OF COLORADO DEFENDANT - APPELLEE ELIZABETH H. MC CANN 303-866-3261 ATTORNEY GENERAL FOR THE STATE OF COLORADO DEPARTMENT OF LAW 1525 SHERMAN STREET, 7TH FLOOR DENVER, CO 80203 303-866-5048 JAMES X. QUINN ATTORNEY GENERAL FOR THE STATE OF COLORADO DEPARTMENT OF LAW 1525 SHERMAN STREET, 7TH FLOOR DENVER, CO 80203 303-866-5048
STATE OF COLORADO DIVISION OF MOTOR VEHICLES DEFENDANT - APPELLEE ELIZABETH H. MC CANN

Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney:
Name:
Type: Attorney: Attorney Phone: Attorney:
ENTRY #: --

303-866-3261 JAMES X. QUINN

M MICHAEL COOKE, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR OF THE COLORADO DEPARTMENT OF REVEUE DEFENDANT - APPELLEE ELIZABETH H. MC CANN 303-866-3261 JAMES X. QUINN

JOAN VECCHI, IN HER INDIVIDUAL AND OFFICIAL CAPACITY AS SENIOR DIRECTOR OF THE COLORADO DIVISION OF MOTOR VEHICLES DEFENDANT - APPELLEE ELIZABETH H. MC CANN 303-866-3261 JAMES X. QUINN

DOCKET PROCEEDINGS

DATE: 11/17/2008

DESCRIPTION: [9612665] CALENDAR NOTICE SENT TO COUNSEL. ARGUMENTS TO BE HELD THURSDAY, JANUARY 15, 2009, AT 9:00 A.M., IN COURTROOM I, BYRON WHITE U.S. COURTHOUSE, DENVER, CO. COUNSEL IS REQUIRED TO GO TO HTTP://WWW.CA10.USCOURTS.GOV UNDER THE ARGUMENT CALENDAR TAB TO OBTAIN AN IMPORTANT NOTICE REGARDING CALENDARED CASES AND REQUIRED FORMS THAT MUST BE COMPLETED AND RETURNED TO THE CLERK'S OFFICE WITHIN 10 DAYS.

--

09/09/2008

[9595857] NOTICE OF CHANGE OF ADDRESS FILED BY

TIMOTHY P. FOX AND AMY FARR ROBERTSON FOR

JULIANNA BARBER.

--

07/21/2008

[9583892] APPELLANTS' REPLY BRIEF FILED BY

JULIANNA BARBER AND MARCIA BARBER. ORIGINAL

AND 7 COPIES. SERVED ON 07/21/2008. MANNER OF

SERVICE: US MAIL, EMAIL.

--

07/07/2008

[9581027] APPELLEES' BRIEF FILED BY M MICHAEL

COOKE, STATE OF COLORADO DEPARTMENT OF

REVENUE, STATE OF COLORADO DIVISION OF MOTOR

VEHICLES AND JOAN VECCHI. ORIGINAL AND 7 COPIES.

SERVED ON: 07/07/2008. MANNER OF SERVICE: EMAIL.

ORAL ARGUMENT REQUESTED? N. APPELLANT'S

REPLY BRIEF DUE 07/24/2008 BY JULIANNA BARBER

AND MARCIA BARBER.

--

06/25/2008

[9578681] ORDER FILED BY CLERK OF THE COURT

GRANTING APPELLEE MOTION TO EXTEND TIME TO

FILE APPELLEE BRIEF BY 7 DAYS. APPELLEE BRIEF

NOW DUE 07/07/2008 FOR STATE OF COLORADO

DEPARTMENT OF REVENUE, STATE OF COLORADO

DIVISION OF MOTOR VEHICLES, M. MICHAEL COOKE

AND JOAN VECCHI. SERVED ON 06/25/2008.

--

06/25/2008

[9578667] APPELLEE'S MOTION TO EXTEND TIME TO

FILE APPELLEE BRIEF UNTIL 07/07/2008 FILED BY M.

MICHAEL COOKE, STATE OF COLORADO DEPARTMENT

OF REVENUE, STATE OF COLORADO DIVISION OF

MOTOR VEHICLES AND JOAN VECCHI. SERVED ON

06/25/2008. MANNER OF SERVICE: US MAIL.

--

05/27/2008

[9571923] ORDER FILED BY CLERK OF THE COURT

GRANTING APPELLEES' UNCONTESTED MOTION FOR

ENLARGEMENT OF TIME TO FILE ANSWER BRIEF TO

06/30/2008 (30-DAY EXTENSION) FOR STATE OF

COLORADO DEPARTMENT OF REVENUE, STATE OF

COLORADO DIVISION OF MOTOR VEHICLES, M

MICHAEL COOKE AND JOAN VECCHI. NO FURTHER

EXTENSIONS ON THE CLERK'S AUTHORITY. SERVED

ON 05/27/2008.

--

05/23/2008

[9571907] APPELLEES' UNCONTESTED MOTION FOR

ENLARGEMENT OF TIME TO FILE ANSWER BRIEF

UNTIL 06/30/2008 FILED BY M MICHAEL COOKE, STATE

OF COLORADO DEPARTMENT OF REVENUE, STATE OF

COLORADO DIVISION OF MOTOR VEHICLES AND JOAN

VECCHI. SERVED ON 05/22/2008. MANNER OF SERVICE:

US MAIL.

--

04/25/2008

[9565364] APPELLANTS' BRIEF FILED BY JULIANNA

BARBER AND MARCIA BARBER. ORIGINAL AND 7

COPIES. SERVED ON 04/25/2008 BY US MAIL. ORAL

ARGUMENT REQUESTED? Y. JOINT APPENDIX FILED.

ORIGINAL AND 1 COPY. APPENDIX PAGES: 309.

APPELLEES' BRIEF DUE 05/30/2008 FOR STATE OF

COLORADO DEPARTMENT OF REVENUE, STATE OF

COLORADO DIVISION OF MOTOR VEHICLES, M.

MICHAEL COOKE AND JOAN VECCHI.

--

04/10/2008

[9561568] CASE MEDIATION CONFERENCING

TERMINATED.

--

04/09/2008

[9561311] ORDER FILED BY CLERK OF THE COURT

GRANTING APPELLANTS' MOTION FOR EXTENSION OF

TIME TO FILE OPENING BRIEF. APPELLANTS' BRIEF

AND APPENDIX DUE ON 04/25/2008 FOR JULIANNA

BARBER AND MARCIA BARBER. NO FURTHER

EXTENSIONS ON THE CLERK'S AUTHORITY. SERVED

ON 04/09/2008.

--

04/09/2008

[9561292] APPELLANTS' UNOPPOSED MOTION FILED BY

JULIANNA BARBER AND MARCIA BARBER FOR

EXTENSION OF TIME TO FILE OPENING BRIEF UNTIL

04/25/2008. SERVED ON 04/09/2008. MANNER OF

SERVICE: US MAIL/EMAIL.

--

02/19/2008

[9549310] ORDER FILED BY CLERK OF THE COURT

GRANTING APPELLANT'S MOTION TO EXTEND TIME TO

FILE OPENING BRIEF. APPELLANT SHALL SERVE AND

FILE THE OPENING BRIEF BY 04/18/2008 FOR JULIANNA

BARBER AND MARCIA BARBER. SERVED ON 02/19/2008.

--

02/19/2008

[9549301] APPELLANT'S MOTION FILED BY JULIANNA

BARBER AND MARCIA BARBER FOR AN EXTENSION OF

TIME TO FILE OPENING BRIEF. SERVED ON 02/19/2008.

MANNER OF SERVICE: US MAIL.

--

02/15/2008

[9548967] CASE REFERRED FOR MEDIATION

CONFERENCING. PLEASE OPEN THE DOCUMENT LINK

IN THIS NOTICE FOR ADDITIONAL INFORMATION.

--

02/12/2008

[9548159] NOTICE OF APPEARANCE FILED BY TIMOTHY

P. FOX AND AMY FARR ROBERTSON FOR JULIANNA

BARBER AND MARCIA BARBER. CERT. OF INTERESTED

PARTIES: N (Y IS CHECKED, BUT CERTIFICATE IS

BLANK). SERVED ON 02/12/2008. MANNER OF SERVICE:

US MAIL.

--

02/12/2008

[9548163] DOCKETING STATEMENT FILED BY JULIANNA

BARBER AND MARCIA BARBER. ORIGINAL. SERVED ON

02/12/2008. MANNER OF SERVICE: US MAIL.

--

02/12/2008

[9548333] FILED NOTICE RECORD IS COMPLETE.

SERVED ON 02/12/2008. APPELLANTS' BRIEF AND

APPENDIX DUE ON 03/27/2008 FOR JULIANNA BARBER

AND MARCIA BARBER.

--

02/12/2008

[9548160] NOTICE RECEIVED FROM JULIANNA BARBER

AND MARCIA BARBER THAT A TRANSCRIPT IS NOT

NECESSARY FOR THIS APPEAL. NOTICE DUE THAT

RECORD IS COMPLETE BY 02/25/2008 FOR GREGORY

LANGHAM, CLERK OF COURT.

--

02/12/2008

[9548165] NOTICE OF APPEARANCE FILED BY CARRIE

ANN LUCAS AND KEVIN W. WILLIAMS FOR JULIANNA

BARBER AND MARCIA BARBER. CERT. OF INTERESTED

PARTIES: N. SERVED ON 02/12/2008. MANNER OF

SERVICE: E-MAIL.

--

02/08/2008

[9547395] FEE PAID. DATE PAID IN DISTRICT COURT ON

02/08/2008.

--

02/08/2008

[9547425] NOTICE OF APPEARANCE FILED BY

ELIZABETH H. MC CANN AND JAMES X. QUINN FOR

STATE OF COLORADO DEPARTMENT OF REVENUE,

STATE OF COLORADO DIVISION OF MOTOR VEHICLES,

M MICHAEL COOKE AND JOAN VECCHI. CERT. OF

INTERESTED PARTIES: N. SERVED ON 02/08/2008.

MANNER OF SERVICE: US MAIL.

--

02/06/2008

[9546670] CIVIL CASE DOCKETED. PRELIMINARY

RECORD FILED. DATE RECEIVED: 02/06/2008 FEE IS DUE

BY 02/21/2008 FOR JULIANNA BARBER AND MARCIA

BARBER. DOCKETING STATEMENT DUE 02/21/2008 FOR

JULIANNA BARBER AND MARCIA BARBER.

TRANSCRIPT ORDER FORM DUE 02/21/2008 FOR AMY

FARR ROBERTSON. NOTICE OF APPEARANCE DUE ON

02/21/2008 FOR JULIANNA BARBER, MARCIA BARBER,

M. MICHAEL COOKE, STATE OF COLORADO

DEPARTMENT OF REVENUE, STATE OF COLORADO

DIVISION OF MOTOR VEHICLES AND JOAN VECCHI.

 </s> No. 08-1032 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JULIANNA BARBER AND MARCIA BARBER,
Plaintiffs-Appellants
v.
STATE OF COLORADO, DEPARTMENT OF REVENUE, STATE OF COLORADO, DIVISION OF MOTOR VEHICLES,
M. MICHAEL COOKE, in her official capacity, and JOAN VECCHI, in her official capacity,
Defendants-Appellees.

On Appeal from the United States District Court for the District of Colorado
The Honorable Robert E. Blackburn, United States District Judge Civil Action No. 05-cv-00807-REB-CBS

APPELLANTS’ OPENING BRIEF

STATEMENT REGARDING ORAL ARGUMENT Oral argument is requested.
Respectfully submitted,

Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700

Kevin W. Williams Carrie Ann Lucas Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775

Attorneys for Plaintiffs-Appellants

The Addendum to this Brief is being submitted in PDF format as well.

TABLE OF CONTENTS
Statement of Related Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdictional Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Issues Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
I. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
II. Elements of a Claim for Intentional Discrimination under Section 504. . . 20
III. Summary Judgment was Improper Because Plaintiffs Introduced Evidence Sufficient to Demonstrate that the Agency Defendants Intentionally or with Deliberate Indifference Violated Ms. Barber’s Rights Under Section 504. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A. The Agency Defendants Had Knowledge that Harm to Ms. Barber’s Federally Protected Rights was Substantially Likely. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. The Agency Defendants Failed to Act on the Knowledge that Harm to Ms. Barber’s Federally Protected Rights was Substantially Likely. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
IV. There is No Exception to the Deliberate Indifference Standard for State Agencies that Knowingly Violate Federal Law In Reliance on State Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-i-

A. When State Law Stands as an Obstacle to the Purposes of Federal Law, Federal Law Governs. . . . . . . . . . . . . . . . . . . . . . . . 26
B. There is No Exception to the Intentional Conduct Standard For State Agencies Attempting to Comply with State Law. . . . . . . . 28
C. The History of Section 504’s Damages Remedy Demonstrates that No Such Exception is Appropriate.. . . . . . . . . . . 30
D. There Is No Good Faith Exception to the Damages Remedy under Section 504. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
V. It is a Disputed Issue of Fact Whether The Agency Defendants’ Proposed Alternative Was Reasonable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
A. The Agency Defendants’ Proposed Alternative Denied the Barbers Meaningful Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
B. Unreasonable Delay of An Accommodation Is Tantamount to Denial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
C. It Is Not Sufficient to Defeat a Claim for Compensatory Damages for the Agency Defendants to Do Something . . . Anything. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
VI. There Are Disputed Issues of Fact Concerning Whether “Limited Guardianship” Was Offered And, if it Was, Whether it Was Reasonable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Certificate Regarding Length of Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
-ii-

Addendum

Tab 1

Order Granting Defendants’ Motion for Summary Judgment

Tab 2

Order Denying Plaintiffs’ Motion to Reconsider and to Alter Judgment

Tab 3

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Tab 4

Remedies provision for Section 504, 29 U.S.C. § 794a.

Tab 5

Colorado Revised Statutes § 42-2-106 (2004).

Tab 6

Colorado Revised Statutes § 42-2-105.5 (2004).

Tab 7

Colorado Laws 1999, ch. 334, sec. 1(c).

Tab 8

November 22, 2004 Letter from Steve Tool, Senior Director of the Colorado Division of Motor Vehicles, to Marcia Barber.

Tab 9

February 23, 2006 Letter from Assistant Attorney General Robert H. Dodd, Jr., to Chris Méndez, attorney for Marcia Barber.

-iii-

TABLE OF AUTHORITIES
Cases
Alexander v. Choate, 469 U.S. 287 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 35
Armstrong v. Reno, 172 F. Supp. 2d 11 (D.D.C. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Barnes v. Gorman, 536 U.S. 181 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21, 30
Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2d Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 33
Brinn v. Tidewater Transp. Dist. Comm’n, 242 F.3d 227, 232-34 (4th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Brown v. Woodford, No. C 05-2937 SI (pr), 2007 WL 735768 (N.D. Cal. Mar. 7, 2007). . . . . . 40
Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597, 602 (4th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
City of Canton v. Harris, 489 U.S. 378 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22
Cohen v. Montgomery County Department of Health and Human Services, 817 A.2d 915 (Md. App. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28
-iv-

Dare v. California, 191 F.3d 1167 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Davis v. Flexman, 109 F. Supp. 2d 776 (S.D. Ohio 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Emerson v. Kansas City Railway Co., 503 F.3d 1126 (10th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Falls v. Prince George’s Hospital Ctr., No. Civ.A. 97-1545, 1999 WL 33485550 (D. Md. Mar. 16, 1999). . . . . . . 25
Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 32
Galusha v. New York State Department of Environmental Conservation, 27 F. Supp. 2d 117 (N.D.N.Y. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
Green v. Housing Auth., 994 F. Supp. 1253 (D. Or. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Groome Resources Ltd., LLC v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Guardians Association v. Civil Serv. Commission, 463 U.S. 582 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
-v-

Guckenberger v. Boston University, 974 F. Supp. 106 (D. Mass. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37
Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Hines v. Davidowitz, 312 U.S. 52 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Jeffries v. Kansas, 147 F.3d 1220 (10th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Krocka v. Riegler, 958 F. Supp. 1333 (N.D. Ill. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Love v. Westville Correctional Center, 103 F.3d 558 (7th Cir. 1996) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30-31
McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Nakis v. Potter, No. 01 Civ. 10047 (HBP), 2004 WL 2903718 (S.D.N.Y. Dec. 15, 2004).. 37
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775 (7th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
O’Shea v. Yellow Technological Services, Inc., 185 F.3d 1093 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
-vi-

Pierce v. Society of Sisters, 268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Powers v. MJB Acquisition Corp., 184 F.3d 1147 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Roberts v. Progressive Independence, Inc., 183 F.3d 1215 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 33
Quinones v. City of Evanston, 58 F.3d 275 (7th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17, 29
Selenke v. Medical Imaging of Colorado, 248 F.3d 1249 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Simpson v. University of Colorado, 500 F.3d 1170 (10th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955 (10th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
South Dakota Farm Bureau, Inc. v. Hazeltine, 202 F. Supp. 2d 1020 (D.S.D. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Swenson v. Lincoln County School District No. 2, 260 F. Supp. 2d 1136 (D. Wyo. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Troxel v. Granville, 530 U.S. 57 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Webb v. Allstate Life Insurance Co., 536 F.2d 336 (10th Cir. 1976) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Wells v. Colorado Department of Transportation, 325 F.3d 1205 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
-vii-

Williams v. Philadelphia Housing Authority Police Department, 380 F.3d 751 (3d Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43-44
Zervos v. Verizon New York, Inc., 252 F.3d 163 (2d Cir.2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Constitutions and Statutes
United States Constitution, Article VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Title II of the Americans with Disabilities Act of 1990
42 U.S.C. § 12131 et seq. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim The Rehabilitation Act of 1973
29 U.S.C. § 791. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 29 U.S.C. § 794. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 29 U.S.C. § 794a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 Title VI of The Civil Rights Act of 1964 42 U.S.C. § 2000d. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Title IX of the Education Amendments of 1972 20 U.S.C. § 1681 et seq... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 1981a(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
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Colorado Constitution, article v, section 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18 Colo. Rev. Stat. § 15-14-206(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Colo. Rev. Stat. § 15-14-208(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Colo. Rev. Stat. § 42-2-104(4)(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Colo. Rev. Stat. § 42-2-105.5(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Colo. Rev. Stat. § 42-2-106(1)(a)(2004). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Colo. Rev. Stat. § 42-2-106(1)(b)(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Colo. Rev. Stat. § 42-2-106(1)(b)(2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 Colo. Rev. Stat. § 42-2-106(1)(b)(II)(2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Colo. Laws 1999, chapter 334, section 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regulations 28 C.F.R. § 35.130(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 28 C.F.R. § 41.51(b)(1)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 43 49 C.F.R. § 27.17.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27
Rules The Federal Rules of Civil Procedure
Rule 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Rule 59(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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The Federal Rules of Appellate Procedure Rule 4(a)(4)(A)(v). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rule 32(a)(7)(B)(I). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Rule 32(a)(7)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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STATEMENT OF RELATED CASES None.
JURISDICTIONAL STATEMENT The District Court’s subject-matter jurisdiction arose under 28 U.S.C. §§ 1331 and 1343, because Plaintiffs-Appellants Julianna Barber and Marcia Barber (the “Barbers”) allege discrimination on the basis of disability by Defendants-Appellees Colorado Department of Revenue, Colorado Division of Motor Vehicles, M. Michael Cooke, and Joan Vecchi (collectively the “Agency Defendants”), in violation of Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794 (Addendum Tab 3). This Court’s jurisdiction arises under 28 U.S.C. § 1291 because the Barbers appeal from a final judgment of the United States District Court for the District of Colorado. Judgment entered on May 22, 2007. (Joint Appendix (“JA”) 256-58.) The Barbers filed a Motion to Reconsider and to Alter Judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure on May 29, 2007. (JA 259-74.) The district court denied that motion on January 24, 2008. (JA 303-06.) The Barbers filed their Notice of Appeal on February 4, 2008, within 30 days of that order. (JA 307-08.) This appeal is therefore timely pursuant to Rule 4(a)(4)(A)(v) of the Federal Rules of Appellate Procedure. This appeal is from a judgment pursuant to
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Rule 56 of the Federal Rules of Civil Procedure dismissing the claims of the Plaintiffs-Appellants under Section 504.
STATEMENT OF ISSUES PRESENTED FOR REVIEW 1. Whether the district court erred by creating an exception to this Circuit’s standard for compensatory damages under Section 504 for conduct that the defendant was on notice would violate federal rights but believed was required by state law. 2. Whether the district court improperly resolved disputed issues of fact, including, for example, determining on summary judgment that it is reasonable for a state agency to refuse to promptly grant an accommodation that its personnel agreed was reasonable, offering instead only to urge the state legislature to amend the state statute.
STATEMENT OF THE CASE This case tests whether a defendant that denies an accommodation that its personnel admit is reasonable is shielded from damages liability, even if it engaged in intentional discrimination, by a state law that allegedly precluded the accommodation. Marcia Barber, who is blind and therefore does not have a driver’s license, filed this case after the state of Colorado repeatedly refused to grant her request for a reasonable accommodation to permit her 15-year-old daughter, Julianna, to
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practice driving with her grandfather. The relevant state statute, as it read at the time, permitted a 15-year-old with a “minor’s instruction permit” to drive under the supervision of a licensed parent, step-parent, or guardian. Colo. Rev. Stat. § 42-2-106(1)(b)(2004) (Addendum Tab 5). Ms. Barber requested the accommodation of permitting Julianna to practice driving with her grandfather. The Agency Defendants refused this request, informing Ms. Barber that, based on the language of section 42-2-106(1)(b), she would have to assign guardianship of Julianna for this to be permitted.
When the case was first filed, there were five plaintiffs: Marcia Barber; Julianna Barber; Marcia Barber’s younger daughter; and two organizational plaintiffs, the Colorado Cross-Disability Coalition, and the American Council of the Blind of Colorado. For reasons unrelated to this appeal, all but the first two voluntarily dismissed their claims during the course of the litigation, leaving Marcia and Julianna Barber.
Defendants in the case are the Colorado Department of Revenue and the Colorado Division of Motor Vehicles (“DMV”), as well as the current heads of those two departments, M. Michael Cooke and Joan Vecchi, respectively.
The Barbers initially brought claims under both Section 504, which prohibits discrimination on the basis of disability by recipients of federal funding, 29 U.S.C. § 794(a), and Title II of the Americans with Disabilities Act (“ADA”),
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42 U.S.C. § 12131 et seq., which prohibits such discrimination by public entities. The Barbers’ claims alleged disability discrimination based on the Agency Defendants’ refusal of Ms. Barber’s request for a reasonable accommodation. During the course of the litigation, the Barbers dismissed their ADA claims and their claims for injunctive relief under Section 504, and proceeded only on claims for damages under Section 504.
On May 14, 2007, the district court granted the Agency Defendants’ motion for summary judgment. (JA 251-55; Addendum Tab 1.) The court held that the Barbers had “easily met” the first prong of the test for deliberate indifference -the prerequisite for damages under Section 504 -- because “Defendants frankly acknowledged that the statute as worded in 2004 potentially violated plaintiffs’ rights” under the ADA and Section 504. (JA 253.) However, the district court concluded that “[a]n accommodation that would have required defendants to willfully ignore or violate [state] law is per se not reasonable.” (JA 254.) This holding was not supported by legal citation.
Plaintiffs moved for reconsideration on the grounds that this holding was contrary to the Supremacy Clause, U.S. Const., art. VI, cl. 2, and cited to a number of other Section 504 and ADA cases in which accommodations were required that ran contrary to state law. (JA 267-72.)
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The district court denied reconsideration. The court acknowledged the “uncontroversial conclusion that state statutes that violate the ADA will not stand.” (JA 304; Addendum Tab 2.) However, it held -- again, without citation -that a state agency cannot be “found to have intentionally discriminated . . . by virtue of adhering to a reasonable reading of a duly enacted state statute . . ..” (JA 304 (emphasis in original).) Furthermore, although there was an extensive factual record supporting the reasonableness of Ms. Barber’s request and its urgency in light of the General Assembly’s purpose in providing for one year of supervised driving practice between the ages of 15 and 16, the court adopted the Agency Defendants’ factual assertion that it was reasonable to deny Ms. Barber’s requested accommodation and instead offer to attempt to amend the statute that conflicted with the requested accommodation. (JA 305.)
The Barbers appeal the district court’s May 14, 2007 order granting the Agency Defendants’ motion for summary judgment and its January 24, 2008 order denying Plaintiffs’ motion for reconsideration.
STATEMENT OF FACTS Colorado has established a graduated driver’s licensing system under which minors may obtain a “minor’s instruction permit” at the age of 15. Colo. Rev. Stat. § 42-2-106(1)(b). With this permit -- after a required driver education course -- the minor may drive with an authorized adult in the car. After at least 50 hours
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of driving practice over the course of a year with the minor’s instruction permit, and after attaining the age of 16, the minor is eligible to obtain a “minor driver’s license,” which permits the minor to drive unsupervised. Colo. Rev. Stat. §§ 42-2104(4)(a)(I) - (II).
The Colorado General Assembly has explained that this system is in place to ensure that young drivers get plenty of practice -- over time and under appropriate supervision -- before they take to the road alone. The General Assembly’s findings concerning teenage drivers state that “[p]roviding additional behind-the-wheel training with a parent, guardian, or other responsible adult before obtaining a minor driver’s license is the beginning of the young driver’s accumulation of experience.” Colo. Rev. Stat. § 42-2-105.5(1)(b) (Addendum Tab 6); see also Colo. Laws 1999 ch. 334, § 1(c) (“Graduated drivers licensing systems are designed to teach beginning drivers how to drive making certain that they accumulate sufficient behind-the-wheel experience in low-risk settings before they receive an unrestricted driver’s license”); id. § 1(d) (“[a] graduated drivers licensing system is needed in Colorado to progressively develop and improve the skills of its teenage drivers in the safest possible environment to reduce the incidence of collisions and fatalities among teenage drivers.”). (Addendum Tab 7.)
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Plaintiff-Appellant Julianna Barber (“Julianna”) turned 15 on September 8, 2004 and obtained her minor’s instruction permit on October 13, 2004. (JA 90; 160 ¶ 5.) As such, the relevant period for her to practice driving with a minor’s instruction permit -- and thus the relevant period for this case -- was October 13, 2004 to September 8, 2005. As the statute read in 2004, Julianna would have been eligible to drive only with a parent, step-parent or guardian, provided that individual had a valid driver’s license. Colo. Rev. Stat. § 42-2-106(1)(b) (2004). None of these options was available to Julianna: her mother, Plaintiff-Appellant Marcia Barber (“Ms. Barber”), is blind and, as a result, does not have a driver’s license; her father lives out of state; and she has no step-parent or other guardian. (JA 160 ¶¶ 3-4, 7.)
Faced with this conundrum, Ms. Barber requested the reasonable accommodation that Julianna be permitted to practice driving with her father, Julianna’s grandfather. Ms. Barber first made this request to her local DMV office, who referred her to Steve Tool, then the Senior Director for the Colorado Division of Motor Vehicles. She called Mr. Tool and made her request to him. (JA 161 ¶ 14; 177:4-24; 187:6-8.)
Mr. Tool thought that this was a reasonable request. (JA 194:9-19; 195:1217.) Because he was not a lawyer, however, Mr. Tool sought guidance from Robert Dodd, an Assistant Attorney General with the Colorado Attorney General’s
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office. (JA 188:20-22.) The answer Mr. Tool received from Mr. Dodd -- which he recited in a November 22, 2004 letter to Ms. Barber (the “Tool Letter”) -- was that Julianna’s grandfather could not supervise her driving unless he were “a legally appointed guardian.” (JA 199; Addendum Tab 8.)
Mr. Tool’s letter also conveyed the Attorney General’s strict interpretation of the word “guardian” as used in that section:
The term “guardian” is defined in Black’s Law Dictionary as “a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status or defect of age, understanding of self-control, is considered incapable of administering his own affairs.” In addition, it includes “one who legally has the care and management of the person, or the estate, or both of a child during its minority.” (JA 199 (emphasis in original).) Based on this definition, Mr. Tool denied Ms. Barber’s request that her father be allowed to supervise Julianna’s driving for purposes of section 42-2-106(1)(b). (JA 192:11-13, 199.) Mr. Tool also noted at the end of the letter that he had been contacted by the office of a state senator about perhaps amending the statute. (JA 200.) The Colorado General Assembly, however, does not convene until the second Wednesday in January. See Colo. Const., art. v, § 7. Unless it took up an amendment to the minor’s instruction permit statute as its first order of business, passed it immediately, and gave it an immediate effective date, this course not be
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expected to yield results for the Barbers until the spring, that is, far into the relevant period for Julianna to practice driving.
The Tool Letter thus required either that Ms. Barber wait for the General Assembly to act -- hoping that it would consider and pass the proposed amendment at some indefinite time in the future -- or that she assign guardianship of Julianna to her grandfather. Ms. Barber did not believe it was reasonable that she be required to assign guardianship of her daughter to secure driving practice for her. She testified, “[i]t’s a legal requirement . . . that would be imposed on me because of my disability that would not be imposed on any other ablebodied person. It called my parenting abilities into question. It required me to give up decision-making responsibility. I wasn’t looking to give up my parenting role. I was simply looking for someone to supervise my daughter’s driving practice.” (JA 101 (pp. 48:11 - 49:10).)
Ms. Barber responded in writing to the Tool Letter, requesting that, as an accommodation, an exception be made to the literal requirements of section 42-2106(1)(b) permitting another licensed driver over the age of 21 to supervise Julianna’s driving. (JA 198.) Ms. Barber explicitly tied the need for the accommodation to her blindness, and explained that under the ADA, which she --
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as a lay person -- believed governed,1 a public entity was required to make reasonable modifications to avoid discrimination. She also made it clear that time was of the essence, stating, “I would greatly appreciate a timely response, as it has already been two months since my daughter completed her driver’s education course and [she] has been unable to log practice time to maximize her ability to drive safely.” (JA 198.)
Upon receipt of this letter, Mr. Tool again consulted Mr. Dodd. Although the Agency Defendants have asserted a privilege as to the substance of that call, the result was that Mr. Tool contacted Ms. Barber “and informed her that this accommodation could not be made.” (JA 194:21 - 195:11.)
In January 2005, after her request for an accommodation had been denied twice -- and unwilling to assign guardianship of her daughter -- Ms. Barber called John Suthers, the Attorney General of Colorado. Ms. Barber and Gen. Suthers had attended the same high school, and Ms. Barber left him a phone message, which he returned. (JA 180:7-18.)
1 The requirements of Title II of the ADA are the same as those of Section 504. See Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 859 (10th Cir. 2003); see also McGary v. City of Portland, 386 F.3d 1259, 1266 n.3 (9th Cir. 2004) (“Although Title II of the ADA uses the term ‘reasonable modification,’ rather than ‘reasonable accommodation,’ these terms create identical standards.” (Citation omitted.))
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There is considerable dispute concerning what was said during that phone call.
Ms. Barber testified, “I explained the situation to [Gen. Suthers] and asked for a reasonable accommodation under the ADA, and was informed that the ADA didn’t apply to statutes, and that because I was not a licensed driver, my daughter would not be allowed to drive unless I was willing to assign guardianship.” (JA 180:23 - 181:5; see also JA 201 ¶ 2.) She does not recall that Mr. Suthers made any further comments about trying to find a solution. (JA 181:6-10.)
Although Gen. Suthers claims that he discussed a “limited guardianship” with Ms. Barber (JA 207:17), Ms. Barber denies that Gen. Suthers made any such offer. (JA 181:11-15, 201 ¶¶ 3-4.) Because it would have required the alienation of parental rights -- a significant step not required of nondisabled parents of teenage drivers -- limited guardianship was, in any event, not a reasonable accommodation. Ms. Barber testified that even limited guardianship would have required her to “assign[ ] power over [her] children to another individual” (JA 101 (p. 49:9-10)) and to ask that individual to assume a great deal of legal responsibility. This was an “extra legal hardship . . . a requirement, a burden . . . being put on a person because of a disability.” (JA 102 (p. 50:10-15.) It also would have required Ms. Barber to retain an attorney and possibly go to court,
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expensive and time-consuming hurdles not required of nondisabled parents. (JA 102 (p. 51:18 - 52:2).)
Gen. Suthers’s deposition testimony is, in any event, internally inconsistent on the question whether he offered Ms. Barber a “limited guardianship.” For example, he testified that, “I believed that we could work this out by having a guardian take that responsibility, and it could be the father.” (JA 118 (p. 27:1315).) Gen. Suthers also testified that he was familiar with the steps necessary to create a formal guardianship and that he did not “know of a guardianship, a true guardianship, other than a formal guardianship” (JA 205:9-12), and that “if the department [was] going to insist on a court guardianship, let’s go get one.” (JA 209:13-15.)
The events following that phone call also lead to the inference that Gen. Suthers did not propose any solutions besides the assignment of full guardianship to Julianna’s grandfather.
After they spoke, Ms. Barber sent Gen. Suthers two letters. In the first, dated January 21, 2005, she attached an excerpt from the ADA relating to “reasonable modifications” by a public entity. She also made clear -- as she had to Mr. Tool -- that she did not have time to wait for the statute to be amended: “I am respectfully requesting a more immediate and reasonable modification to the existing law so that my daughter -- who is eligible in all other respects -- may be
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permitted to practice driving with her learner’s permit now.” Finally, she stressed how inappropriate it was to suggest that she assign guardianship and how painful it had been to hear that suggestion: “Please consider, if you are a parent, the impact of someone suggesting that another person might be a more suitable guardian, even temporarily, due to some physical attribute of yours.” (JA 217.)
In her second letter, dated January 25, 2005, Ms. Barber explained that she had contacted the United States Department of Justice “for clarification . . . and was informed that the ADA CAN override state statutes according to whichever allows greater access to services for persons with disabilities.” (JA 216 (emphasis in original).) There would have been no reason to seek such clarification if Gen. Suthers had not told her that “the ADA didn’t apply to statutes,” as she recalled her conversation with him. (JA 181:2.)
Gen. Suthers admits that he received these letters but that he did not respond to them. (JA 206:13-25; 208:22-24; 214:1-3.) He also admits, as he must, that he knew that where there is a conflict between federal and state law, “the Supremacy Clause would indicate . . . that the federal law trumps the state law . . .” (JA 277:17-24), and that the ADA “requires states to provide reasonable modifications of policies to persons with disabilities.” (JA 278:15-17.)
On February 3, 2005, attorney Chris Méndez of the Legal Center for
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People with Disabilities and Older People sent a letter to Mr. Dodd on Ms. Barber’s behalf explaining the legal basis for Ms. Barber’s request for a reasonable accommodation. (JA 168-72.) Mr. Dodd responded to this letter on February 23, 2005 (the “Dodd Letter”), stating unequivocally that, under section 42-2-106(1)(b), “it is critical that [young drivers] be under the direct and immediate supervision of someone with full parental authority.” (JA 173 (emphasis added); Addendum Tab 9.) Although Mr. Suthers testified that he had “relay[ed] the substance of [his] conversation with Ms. Barber to Mr. Dodd” (JA 212:1-3), the “Dodd Letter” says nothing about the “limited guardianship” Mr. Suthers claims he offered only one month earlier. (JA 173-74.) At his deposition, Mr. Suthers reviewed the Dodd Letter and testified that he agreed with it. (JA 120 (pp. 36:7 - 37:5); 215:5-13.)
In sum, it is clear from the only two written responses the Agency Defendants offered -- the Tool Letter and the Dodd Letter -- as well as Gen. Suthers’s adoption of the latter that the only options the Agency Defendants offered Ms. Barber were to assign full guardianship of Julianna to Julianna’s grandfather or to wait and hope that the Colorado General Assembly might act.
The General Assembly passed an amended version of section 42-2106(1)(b) which took effect on May 27, 2005. The amendment permitted minors with minor’s instruction permits to drive with a “parent, stepparent, grandparent
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with power of attorney, or guardian . . ..” Colo. Rev. Stat. § 42-2-106(1)(b) (2005). This still required an assignment of legal rights -- through a power of attorney -- that was not required of non-disabled parents of teen drivers. It was not until August 10, 2005, that the Agency Defendants finally provided the accommodation the Barbers had long requested: they permitted Ms. Barber to simply designate her father to supervise Julianna’s driving practice. The document Ms. Barber signed stated explicitly that “[b]y executing this Designation, I am in no way relinquishing any parental rights.” (JA 134.)2
Even if, hypothetically, the May 27, 2005 amendment had removed all discriminatory conditions on Julianna’s ability to practice driving, it came with only a little over three months left in the period during which the minor instruction permit was relevant. By September 8, 2005 -- when Julianna turned 16 -- Julianna would have been eligible to get a “temporary instruction permit” and practice driving with any licensed driver over the age of 21. Colo. Rev. Stat. § 42-2106(1)(a)(2004). By May 27, Julianna had missed over two thirds of the practice driving deemed essential by the Colorado General Assembly; by August 10, she had missed all but one month of the relevant time.
2 It was not until 2006 -- long after it had ceased to be relevant to the Barbers -- that the statute was amended to permit a parent who did not have a license to appoint another driver over the age of 21 to supervise a minor driver between 15 and 16 years of age. See Colo. Rev. Stat. § 42-2-106(1)(b)(II) (2006).
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After August 10, 2005, when the Agency Defendants finally permitted Julianna to practice driving with her grandfather, she rushed to acquire the remaining hours of practice driving necessary to secure her driver’s license as close to her 16th birthday as she could. Instead of practicing steadily over the period from October, 2004, to October, 2005 -- as Colorado’s graduated drivers licensing system anticipated -- Julianna practiced for approximately six hours between May and August 2005 (donated by a helpful driving instructor), obtaining the remainder of her required 50 hours between August 10 and when she was finally able to obtain her license in November, 2005. (JA 130-33; 184:6-13.) Julianna estimates she missed out on at least 100 hours of driving practice. (JA 221 ¶ 5.)
SUMMARY OF ARGUMENT The district court granted summary judgment for the Agency Defendants based on the incorrect legal conclusion that a state statute can shield a state agency from compensatory damages liability under federal law and based on its improper resolution of disputed issues of fact concerning what accommodation was reasonable under the circumstances of this case. A state statute does not shield state actors from liability for violations of federal law. To the contrary, “[a] discriminatory state law is not a defense to
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liability under federal law; it is a source of liability under federal law.” Quinones v. City of Evanston, 58 F.3d 275, 277 (7th Cir. 1995) (emphasis in original).
This Court has held that compensatory damages are available for intentional violations of Section 504, and “intentional discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.” Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999). “Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that . . . likelihood.” Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001) (citing City of Canton v. Harris, 489 U.S. 378, 389 (1988)). There is no “good faith” exception to the damages remedy under Section 504. Roberts v. Progressive Independence, Inc., 183 F.3d 1215, 1222-23 (10th Cir. 1999).
The undisputed facts demonstrate that the Agency Defendants were deliberately indifferent. They had knowledge: Ms. Barber requested -- early and often -- the accommodation that her father be permitted to supervise Julianna’s driving practice, and did so with explicit reference both to federal antidiscrimination law and to the need for a speedy solution that would permit Julianna to start practicing her driving. (JA 166, 177, 180-81, 187, 216, 217.) It is equally clear that the Agency Defendants failed to act: both Mr. Tool and Mr.
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Dodd explicitly rejected Ms. Barber’s request in writing, the latter writing adopted by the Attorney General himself. (JA 120, 173-74, 199-200, 215.) It is undisputed both that Mr. Tool -- the Senior Director of the DMV -- thought Ms. Barber’s request was reasonable (JA 194) and that the request was eventually granted, albeit only one month before it ceased to be relevant (JA 134). Finally, the Agency Defendants refused to provide the accommodation despite the fact that they knew that federal law trumped state law, and had been explicitly reminded of this principle by Ms. Barber. (JA 216, 277:17-24.)
These facts, at the very least, create genuine issues of material fact concerning the question whether the Agency Defendants engaged in intentional discrimination, making the issue inappropriate for summary judgment.
The district court also erred by resolving in favor of the Agency Defendants the disputed factual question whether it was reasonable for the state to reject the request that Julianna be permitted to practice driving with her grandfather beginning in October 2004 in favor of attempting to amend the statute in question during the next legislative session (JA 305), which session was not set to begin until the second Wednesday in January, 2005, see Colo. Const., art. v, § 7, and could not be expected to yield results for the Barbers until the spring at the earliest. The reasonableness of accommodations is a question of fact for the jury. In light of Mr. Tool’s statement that Ms. Barber’s request was reasonable, the
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limited relevant time for Julianna’s driving practice, and other evidence that must be considered in a light favorable to the Barbers, summary judgment was inappropriate.
ARGUMENT I. Standard of Review
This Court “review[s] the district court’s grant of summary judgment de novo, considering the evidence in the light most favorable to the appellant.” Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1209 (10th Cir. 2003). “In reviewing such dispositions, this court repeatedly has emphasized that we must draw all inferences in favor of the party opposing summary judgment.” O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1096 (10th Cir. 1999). Indeed, “[t]he nonmovant is given ‘wide berth to prove a factual controversy exists.’” Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 966 (10th Cir. 2002) (quoting Jeffries v. Kan., 147 F.3d 1220, 1228 (10th Cir. 1998)).
Where different ultimate inferences may properly be drawn, the case is not one for summary judgment. The court must examine the summary judgment papers in the light most favorable to the party opposing the motion. All the ambiguities and disagreements must be resolved in favor of the party against whom summary judgment is sought. Webb v. Allstate Life Ins. Co., 536 F.2d 336, 339-40 (10th Cir. 1976) (citations omitted).
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In light of the extensive record set forth in the Statement of Facts, the district court’s decision contravened this Court’s standards on summary judgment. II. Elements of a Claim for Intentional Discrimination under Section 504.
Under Section 504, a qualified individual with a disability may not, solely by reason of his or her disability, be “excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . ..” 29 U.S.C. § 794(a). To establish a claim under this provision, Ms. Barber is required to show that (1) she has a disability; (2) she is otherwise qualified to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminated against her. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir. 1999). Discrimination under Section 504 can consist of a denial of a reasonable accommodation where necessary to ensure that a disabled person has meaningful access to a recipient’s programs. See Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857 (10th Cir. 2003) (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985)).
The remedies for a violation of Section 504 are those available for violation of title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d. 29 U.S.C. § 794a(a)(2) (Addendum Tab 4). Although neither remedies provision addresses damages, the Supreme Court has held that there is a compensatory damages remedy for violation of Section 504. See Barnes v. Gorman, 536 U.S.
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181, 187-89 (2002). This Court has held that recovery of compensatory damages under Section 504 requires proof of intent and that “intentional discrimination can be inferred from a defendant’s deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.” Powers, 184 F.3d at 1153.
The Agency Defendants have stipulated that Ms. Barber is disabled and that they receive federal funding. (JA 160 ¶ 1; 161 ¶ 15.) The district court held, and the Agency Defendants did not cross-appeal, that Ms. Barber was “otherwise qualified” for the program at issue. (JA 21-22.) The only question at issue here is whether the Agency Defendants intentionally discriminated against Ms. Barber when they denied her request for a reasonable accommodation, making them liable for compensatory damages.
Julianna Barber brings suit not as a person with a disability, but as a “person aggrieved” by the illegal discrimination against her mother. See 29 U.S.C. § 794a(a)(2). The district court held, and the Agency Defendants did not crossappeal, that Julianna had standing to bring claims for damages caused by the Agency Defendants’ discrimination against her mother. (JA 30.)
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III. Summary Judgment was Improper Because Plaintiffs Introduced Evidence Sufficient to Demonstrate that the Agency Defendants Intentionally or with Deliberate Indifference Violated Ms. Barber’s Rights Under Section 504. The Agency Defendants are liable to the Barbers for compensatory damages
because they intentionally violated Ms. Barber’s rights under federal law or were -- at the very least -- deliberately indifferent to the strong likelihood that their actions would result in a violation of those rights. See Powers, 184 F.3d at 1153. “Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that . . . likelihood.” Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)) (citing City of Canton v. Harris, 489 U.S. 378, 389 (1988).) In the context of a request for reasonable accommodation, intentional conduct occurs when the plaintiff “alerted the public entity to his need for accommodation,” and the defendant’s failure to act was “more than negligent, and involve[d] an element of deliberateness.” Duvall, 260 F.3d at 1139; see also Love v. Westville Corr. Ctr., 103 F.3d 558, 560-61 (7th Cir. 1996) (same).
Here, Ms. Barber repeatedly alerted the Agency Defendants to her need for accommodation -- explicitly noting the fact that the accommodation was required by federal law -- and the Agency Defendants repeatedly denied the request, at least twice in writing.
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A. The Agency Defendants Had Knowledge that Harm to Ms. Barber’s Federally Protected Rights was Substantially Likely.
The district court held that the first half of the Duvall test -- that the Agency Defendants had knowledge that harm to a federally protected right is substantially likely -- was “easily met. Defendants frankly acknowledged that the statute as worded in 2004 potentially violated plaintiffs’ rights under the Americans With Disabilities Act and the Rehabilitation Act.” (JA 253.) And indeed, there is an abundance of evidence that the Agency Defendants knew that harm to Ms. Barber’s federally protected rights was substantially likely.
Between October, 2004, and February, 2005, Ms. Barber repeatedly requested -- orally and in writing -- the accommodation that Julianna be permitted to practice driving with her grandfather. A number of these requests explicitly referenced both federal antidiscrimination law and the fact that time was of the essence. There is only one year during which the ability to practice driving under supervision with a minor’s instruction permit is relevant; for Julianna Barber, that year ended when she turned 16 on September 8, 2005. (JA 166, 177, 180-81, 187, 216, 217.)
Ms. Barber made her requests to the Senior Director of the DMV (JA 166), an Assistant Attorney General (JA 168-72), and the Attorney General (JA 180-81). The Attorney General was aware, and it is a reasonable inference that the Assistant
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Attorney General -- as a licensed lawyer -- should have been aware, that “federal law trumps the state law.” (JA 205:17-24.) In any event, Ms. Barber reminded the Attorney General of this in her January 25, 2005 letter. (JA 216.) It is thus undisputed that the Agency Defendants had knowledge of Ms. Barber’s request and of the fact that denying it would likely result in a violation of her rights under federal law.
B. The Agency Defendants Failed to Act on the Knowledge that Harm to Ms. Barber’s Federally Protected Rights was Substantially Likely.
Plaintiffs have also demonstrated that the Agency Defendants failed to act and that this failure to act was “more than negligent, and involve[d] an element of deliberateness.” Duvall, 260 F.3d at 1139. It is undisputed that the Agency Defendants knowingly rejected Ms. Barber’s request. The Senior Director of the DMV and the Assistant Attorney General both expressly denied Ms. Barber’s request in writing, and the latter writing -- the Dodd Letter -- was adopted by the Attorney General in his deposition. (JA 173-74, 199-200, 215.) Both letters expressly informed Ms. Barber that she would have to assign full guardianship -“full parental authority,” in the words of one of the letters (JA 173) -- in order to permit someone else to supervise Julianna’s driving practice.
The facts discussed in this Section III demonstrate that Plaintiffs established a claim for intentional violation of Section 504, and that summary judgment was
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thus improper. See, e.g., Davis v. Flexman, 109 F. Supp. 2d 776, 791 (S.D. Ohio 1999) (holding that a genuine issue of material fact existed concerning intentional discrimination where the defendant had been informed of the need for an accommodation, had been provided with a copy of the ADA, and had been informed by the plaintiff that defendant had a legal obligation to provide the accommodation); Falls v. Prince George’s Hosp. Ctr., No. Civ.A. 97-1545, 1999 WL 33485550, at *10 (D. Md. Mar. 16, 1999) (“[W]hile defendants may have had the best of intentions, and while they may have believed themselves to be within the confines of the law, they nevertheless intentionally violated [Section 504] by willfully withholding from plaintiff the reasonable accommodations to which she was entitled under the law. They had notice of the potential risk of their decision, and clearly refused the accommodation knowingly.” (Citations omitted).) IV. There is No Exception to the Deliberate Indifference Standard for State
Agencies that Knowingly Violate Federal Law In Reliance on State Law. Having held that the first part of the Duvall test -- knowledge of a likely violation of federal rights -- was “easily met” (JA 253), the district court ultimately held that the Agency Defendants could not be “found to have intentionally discriminated . . . by virtue of adhering to a reasonable reading of a duly enacted state statute, while simultaneously working to facilitate an expeditious legislative amendment thereto.” (JA 304-05 (emphasis in original).)
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This holding consists of two parts, both incorrect. The first -- that there is an exception to the deliberate indifference standard for state agencies that knowingly violate federal law in reliance on state law -- is a mistaken legal conclusion.
The second -- that it was reasonable for the Agency Defendants to deny Ms. Barber’s request to permit her daughter to start practicing with her grandfather immediately so long as they cooperated in an attempt to amend the law -represented an improper resolution of a disputed issue of fact. This second part will be addressed in Section V below.
A. When State Law Stands as an Obstacle to the Purposes of Federal Law, Federal Law Governs.
Federal law preempts a state law “where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941), quoted in Emerson v. Kan. City S. Ry. Co., 503 F.3d 1126, 1129 (10th Cir. 2007). Because section 422-106(1)(b) (2004) stood as an obstacle to the accomplishment of the purposes of Section 504 -- ensuring meaningful access for people with disabilities to the programs of recipients of federal funding -- the latter statute preempted and mandated a reasonable accommodation.3
3 See also 49 C.F.R. § 27.17 (“[t]he obligation to comply with this part (continued...)
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A number of courts have held that reasonable accommodations are required
under Section 504 and/or Title II of the ADA even where those accommodations
would run contrary to state or local law or regulation. See, e.g., Fisher v. Okla.
Health Care Auth., 335 F.3d 1175, 1177-78 (10th Cir. 2003) (holding that it was a
disputed issue of fact whether the state would be required to make an
accommodation in its Medicaid regulations); Oconomowoc Residential Programs
v. City of Milwaukee, 300 F.3d 775, 777, 780 (7th Cir. 2002) (affirming summary
judgment for plaintiffs that an accommodation in “flagrant violation” of city
zoning code was reasonable); Innovative Health Sys., Inc. v. City of White Plains,
117 F.3d 37, 44-45 (2d Cir. 1997) (holding that reasonableness of proposed
accommodation was a question of fact despite the fact that it would violate city
zoning ordinance), overruled on other grounds recognized by Zervos v. Verizon
New York, Inc., 252 F.3d 163, 171 n. 7 (2d Cir.2001); Crowder v. Kitagawa, 81
3(...continued) is not obviated or affected by any State or local law”); Brinn v. Tidewater Transp. Dist. Comm’n, 242 F.3d 227, 232-34 (4th Cir. 2001) (holding that Supremacy Clause dictated that prevailing plaintiff could recover under Section 504’s attorneys’ fee provision despite the fact that a state statute explicitly prohibited such recovery); S. Dak. Farm Bureau, Inc. v. Hazeltine, 202 F. Supp. 2d 1020, 1042-43 (D.S.D. 2002) (holding that Title II preempted provision of the state constitution where it was “impossible for the defendants to enforce and comply with” the state constitution without violating Title II); Galusha v. N. Y. State Dep’t of Envtl. Conservation, 27 F. Supp. 2d 117, 124 (N.D.N.Y. 1998) (holding that where there was a possible inconsistency between Title II and state law, Title II trumped); Green v. Housing Auth., 994 F. Supp. 1253, 1257 (D. Or. 1998) (holding that Title II preempted Oregon state law concerning hearing ear dogs).
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F.3d 1480, 1485-86 (9th Cir. 1996) (reversing summary judgment against a plaintiff requesting a modification of a state animal quarantine statute); Helen L. v. DiDario, 46 F.3d 325, 327 (3d Cir. 1995) (rejecting the argument that an accommodation was unreasonable because it required changes in the state budget that contravened the state constitution). These cases demonstrate that the fact that an otherwise reasonable accommodation requires a state agency to act contrary to state law does not render the accommodation unreasonable. See, e.g., Crowder, 81 F.3d at 1485 (holding that an accommodation modifying the requirements of a state statute was reasonable even though the state legislature had considered the question in passing the legislation).
B. There is No Exception to the Intentional Conduct Standard For State Agencies Attempting to Comply with State Law.
This Court has held that a defendant that intentionally violates a plaintiff’s rights under Section 504 is liable for compensatory damages, and that such intent can be demonstrated through deliberate indifference to the likelihood of a violation of federal rights. Powers, 184 F.3d at 1153; see also Duvall, 260 F.3d at 1138; Bartlett v. N.Y. State Bd. of Law Exam’rs, 156 F.3d 321, 331 (2d Cir. 1998), rev’d on other grounds, 527 U.S. 1031 (1999). None of these cases -- nor any other of which Appellants are aware -- provides an exception for actions taken
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in the belief that they are required by state law and, indeed, the district court provided no citation to support this conclusion. (JA 304-05.)
As Judge Easterbrook succinctly put it, in the context of an employment discrimination claim challenging actions taken pursuant to state law, “[a] discriminatory state law is not a defense to liability under federal law; it is a source of liability under federal law.” Quinones, 58 F.3d at 277 (emphasis in original).
Several courts have held that Section 504 damages are appropriate for violations that were required by state law or regulation. For example, in Lovell v. Chandler, 303 F.3d 1039, 1056-58 (9th Cir. 2002), the Ninth Circuit held that damages for intentional conduct were appropriate where a state regulation itself violated Title II and Section 504. In Lovell, the program in question -- a state-run health insurance program -- explicitly excluded individuals with disabilities. The Ninth Circuit held that the plaintiffs were entitled to compensatory damages despite the state’s argument that it had acted in good faith. Id. at 1056.
In Bartlett, a bar candidate requested an accommodation that the New York State Board of Law Examiners repeatedly rejected based on its written policies. The Second Circuit held that this constituted deliberate indifference to the strong likelihood of violating the plaintiff’s federally protected rights, and upheld the award of compensatory damages. Id., 156 F.3d at 331.
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C. The History of Section 504’s Damages Remedy Demonstrates that No Such Exception is Appropriate.
The history and purpose of the compensatory damages remedy demonstrate that the exception created by the district court is not appropriate. The Supreme Court first recognized a claim for compensatory damages under Spending Clause legislation -- in that case, Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. -- in Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992); it has subsequently recognized that this created a claim for compensatory damages under Title IV and thus Section 504 as well. See Barnes, 536 U.S. at 185. The Court in Franklin started from the premise that “[t]he power to enforce implies the power to make effective the right of recovery afforded” by the statute in question. Id., 503 U.S. at 68 (emphasis in original; citations omitted). Because “Congress surely did not intend for federal moneys to be expended to support the intentional actions it sought by statute to proscribe,” a compensatory damages remedy was appropriate. Id. at 75. Here, the Barbers have submitted evidence of precisely the sort of intentional discrimination Section 504 was meant to proscribe; Franklin demonstrates that there is no reason to restrict the power to enforce that prohibition through the compensatory damages remedy.
Furthermore, as the Ninth Circuit pointed out in Lovell: The Supreme Court has said that the purpose of requiring proof of intent as a prerequisite for the recovery of monetary damages from a
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public entity is to ensure that the entity had knowledge and notice. The purpose is not to measure the degree of institutional ill will toward a protected group, or to weigh competing institutional motives. Id. 303 F.3d at 1057 (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287-89 (1998); Franklin, 503 U.S. at 74; and Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 598 (1983)). As the Supreme Court elaborated in Gebser, the deliberate indifference standard requires “an official decision by the recipient not to remedy the violation.” Id. at 290; see also Simpson v. Univ. of Colo., 500 F.3d 1170, 1177-78 (10th Cir. 2007) (“The funding recipient should be liable only ‘for its own official decision,’ not ‘its employees’ independent actions.’” (Quoting Gebser, 524 U.S. at 291)). There is no question here that the Section 504 violation was the recipient’s “own official decision.” This is not a case in which Ms. Barber asked the employee behind the counter at the DMV for an accommodation, was refused, and sued for damages. Instead, after receiving such a refusal, Ms. Barber made her request to the head of the DMV, then to the Attorney General himself, then -- through counsel -- to an Assistant Attorney General. The first and third of these each explicitly rejected the request in writing, and Ms. Barber alleges the Attorney General did as well, though he disputes this. There can be no question -- or it is at best a disputed question -- that the recipient itself and the most senior attorneys employed by the
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state of Colorado to advise the recipient had extensive and undisputed notice of the requested accommodation and made an official decision to deny it. The district court’s holding immunizing this decision from a damages remedy is contrary to the Supreme Court’s reasoning in Franklin and Gebser and this Court’s reasoning in Simpson.
The Franklin Court warned -- in response to the dissent’s argument that recognizing a damages remedy would invade the separation of powers -- that “selective abdication of the sort advocated [by the dissent] would harm separation of powers principles in another way, by giving judges the power to render inutile causes of action authorized by Congress through a decision that no remedy is available.” Id., 503 U.S. at 74 (emphasis in original). The exception created by the district court here is just the sort of “selective abdication” that would hobble the enforcement of Section 504.
D. There Is No Good Faith Exception to the Damages Remedy under Section 504.
The district court’s conclusion that the Agency Defendants did not intentionally discriminate appears to stem from the Agency Defendants’ primary argument against deliberate indifference: that they were nice people who felt bad about Ms. Barber’s situation and were trying to be helpful by cooperating in amending the statute. (See, e.g., JA 282-83.) This Court has explicitly held,
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however, that there is no “good faith” exception to the damages remedy under Section 504. In Roberts v. Progressive Independence, Inc., 183 F.3d 1215 (10th Cir. 1999), the plaintiff brought a claim for compensatory damages for failure to accommodate under Section 504. The defendant argued that it was entitled to an instruction -- based on 42 U.S.C. § 1981a(a)(3) -- that the plaintiff was not entitled to compensatory damages where the defendant had demonstrated good faith efforts to accommodate him. Roberts at 1222. This Court held that such an instruction was improper, as § 1981a(a)(3) applied only to section 501 of the Rehabilitation Act, 29 U.S.C. § 791, not to Section 504. Roberts at 1223. There is no “good faith” exception to Section 504’s damages remedy.
Two other circuits have explicitly held that the deliberate indifference standard does not require discriminatory animus. See Duvall, 260 F.3d at 1139 (“the deliberate indifference standard . . . is better suited to the remedial goals of Title II of the ADA than is the discriminatory animus alternative . . .”); Bartlett, 156 F.3d at 331 (“In the context of the Rehabilitation Act, intentional discrimination against the disabled does not require personal animosity or ill will.”).
It does not matter that the Agency Defendants bore Ms. Barber no ill will. Because they had notice of her request and denied it knowing a violation of her federal rights was likely, they are liable for compensatory damages.
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V. It is a Disputed Issue of Fact Whether The Agency Defendants’ Proposed Alternative Was Reasonable. The second part of the district court’s holding excusing the Agency
Defendants from a compensatory damages remedy was the factual determination that it was reasonable for the Agency Defendants to deny the requested accommodation while “working to facilitate an expeditious legislative amendment” to the statute in question. (JA 304-05.) Because the Barbers introduced evidence that this approach continued to deny them meaningful access to the program at issue until (at best) three months and (at worst) one month before it became irrelevant, summary judgment was improper.
A. The Agency Defendants’ Proposed Alternative Denied the Barbers Meaningful Access.
The Agency Defendants’ alleged alternative accommodation of seeking to amend the statute (1) was entirely speculative at the time it was offered to Ms. Barber because there was no guarantee as to whether or when the amendment would be enacted, and (2) ultimately left Julianna with at most three months of relevant driving practice. Because this did not provide meaningful access, it was not a reasonable accommodation.
A reasonable accommodation must provide meaningful access to the programs and activities of a recipient. See, e.g., Chaffin, 348 F.3d at 857 (“‘to assure meaningful access, reasonable accommodations in the [public entity’s]
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program or benefit may have to be made.’” (quoting Alexander, 469 U.S. at 301).) Under Section 504, the Agency Defendants may not afford people with disabilities benefits of their programs that are “not equal to [those] afforded others.” 28 C.F.R. § 41.51(b)(1)(ii). The program at issue here is the minor’s driver instruction program, a program under which most teens -- with nondisabled parents -- receive a full year of driving practice between the ages of 15 and 16. At the point when Ms. Barber first requested the accommodation that Julianna be permitted to practice driving with her grandfather, the Barbers would have been able to take advantage of eleven months of that program, benefits largely equal to those afforded others.
In contrast, by deciding to deny Ms. Barber’s request and instead attempt to amend the statute, the Agency Defendants chose a course that -- by definition -would not yield results, if at all, until far later in the relevant year, benefits not remotely equal to those afforded others. During the period between October, 2004, and August, 2005, instead of the over 100 hours of driving practice Julianna predicts she would have had with her grandfather (JA 221 ¶ 5), her driving practice was limited to five and one half hours of the required driver’s education course, and another approximately six hours donated by a driving instructor. (JA 130-33, 220 ¶ 4.) This is not meaningful access under any definition of the term.
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B. Unreasonable Delay of An Accommodation Is Tantamount to Denial.
The district court held that the Agency Defendants acted reasonably as a
matter of law by electing to deny the requested accommodation and instead
attempt to amend the statute. (JA 304-05.) To the contrary, the predictable delay
in affording the Barbers an accommodation constituted a violation of Section 504;
the reasonableness of this path is at the very least a disputed question of fact.
Delay in granting an accommodation can constitute discrimination. See
Selenke v. Medical Imaging of Colo., 248 F.3d 1249, 1262-63 (10th Cir. 2001)
(noting that “a few courts have concluded that an employer’s delay in providing
reasonable accommodation may violate the ADA” but finding, under the facts of that case, no violation).4 For example, in Guckenberger v. Boston University, 974
F. Supp. 106 (D. Mass. 1997), the court evaluated -- under Title II and Section 504
-- Boston University’s system for requesting accommodations. It ultimately held
that the complexity of the process and inexperience of the evaluators “caused the
4 The district court relied on Selenke in granting summary judgment to the Agency Defendants. (JA 305.) The facts in Selenke are distinguishable in a crucial respect: the defendant in Selenke repeatedly attempted to provide the plaintiff with precisely the accommodations she requested, any delay coming in the logistics of, for example, installing the vent she requested in the darkroom where she worked. See id., 248 F.3d at 1263. The Agency Defendants here made no effort to grant the accommodation Ms. Barber requested; had they decided to permit Julianna to practice driving with her grandfather, the accommodation could have been implemented almost instantly.
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delay and denial of reasonable accommodations” which “violated the ADA and
Section 504.” Id. at 141. In the fair housing context, courts have recognized that
“housing discrimination causes a uniquely immediate injury,” and held that “an
indeterminate delay [in a requested accommodation] has the same effect as an
outright denial.” Groome Resources Ltd., LLC v. Parish of Jefferson, 234 F.3d
192, 199, 200 (5th Cir. 2000); see also Bryant Woods Inn, Inc. v. Howard County,
124 F.3d 597, 602 (4th Cir. 1997) (“Under the Fair Housing Act, however, a
violation occurs when the disabled resident is first denied a reasonable
accommodation, irrespective of the remedies granted in subsequent proceedings.”).5
Similar to housing discrimination, the injury here was “uniquely
immediate”: every month of delay was a month during which Julianna did not get
the driving practice the Colorado General Assembly intended her to get. A
5 See also, e.g., Nakis v. Potter, No. 01 Civ. 10047 (HBP), 2004 WL 2903718, at *15 (S.D.N.Y. Dec. 15, 2004) (holding that question whether delay was unreasonable was a fact issue); Armstrong v. Reno, 172 F. Supp. 2d 11, 23 (D.D.C. 2001) (denying summary judgment on a claim for reasonable accommodation under Section 504 when defendant took over a year to provide an accommodation); Krocka v. Riegler, 958 F. Supp. 1333, 1342 (N.D. Ill. 1997) (Denying motion to dismiss in a case involving an eight-month delay); Cohen v. Montgomery County Dep’t of Health and Human Servs., 817 A.2d 915, 925 (Md. App. 2003) (reversing the dismissal of a complaint for failure to accommodate, holding that “[s]imply because appellant received the accommodation she requested does not make that accommodation, no matter how belated, a ‘reasonable accommodation.’”).
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contingent course of action -- legislative amendment -- that might never have occurred and at best involved a predictable delay of six to eight months did not provide meaningful access to the state-mandated one year of driving practice.
C. It Is Not Sufficient to Defeat a Claim for Compensatory Damages for the Agency Defendants to Do Something . . . Anything.
The Agency Defendants and the district court appeared to believe that so long as the Agency Defendants did something -- anything -- in response to Ms. Barber’s request, they cannot have been deliberately indifferent. This not the case. The adequacy of the Agency Defendants’ response is a disputed question of fact.
As an initial matter, there is no dispute that the Agency Defendants denied, outright, Ms. Barber’s requested accommodation. In reality, they did not offer her any alternative accommodation -- that is, a deviation from state law or policy to account for her disability -- rather, they offered her what she and every other citizen of Colorado already had: the right to lobby the General Assembly to try to change the law.
Even if the Agency Defendants’ proffer of assistance in amending the statute could be construed as an alternative accommodation, it is not enough to establish -- as a matter of law -- that they were not deliberately indifferent. A number of courts have held defendants liable for compensatory damages based on intent or deliberate indifference where the defendants took some -- but inadequate
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-- action in response to a request for a reasonable accommodation. In Duvall for example, the plaintiff was a litigant in state court who, because he was hard of hearing, requested the accommodation of videotext display. The defendant court administrators denied the request and instead offered him an assistive listening device and scheduled the relevant trial in a courtroom designed for individuals with hearing impairments. The Ninth Circuit held that the plaintiff had “presented sufficient evidence to create a material issue of fact as to whether the refusal to provide videotext display prevented him from participating equally in the hearings at issue.” Id., 260 F.3d at 1138. The court then went on to consider the question of deliberate indifference and whether, in light of the accommodations offered, the defendant could be said to have “fail[ed] to act,” the second prong of the test established in that case. The court held that “a public entity does not ‘act’ by proffering just any accommodation,” but rather has an obligation to “undertake a fact-specific investigation to determine what constitutes a reasonable accommodation . . .” Id. at 1139. Finally, the court held that the plaintiff’s evidence that his requests for videotext were denied created a triable issue of fact on the question of deliberate indifference. Id. at 1140-41.
In the present case, the Agency Defendants knew of the time-limited nature of the program in question, and should have concluded that a solution that at best would continue to prevent Julianna from practicing driving for the next six to
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eight months was not reasonable. Like the plaintiff in Duvall, Plaintiffs here have created a triable issue of fact on the question of deliberate indifference. See also Brown v. Woodford, No. C 05-2937 SI (pr), 2007 WL 735768, at *3 (N.D. Cal. Mar. 7, 2007) (holding that plaintiff prisoner had stated a claim for compensatory damages under Title II based on his request for the accommodation of special shoes for his club feet even though defendant prison had offered the accommodation of sedentary work and foot surgery); Swenson v. Lincoln County Sch. Dist. No. 2, 260 F. Supp. 2d 1136, 1146-47 (D. Wyo. 2003) (holding that the fact that the defendant school accommodated the plaintiff during part of the school day could be considered by the jury, but did not preclude a finding of intentional discrimination). VI. There Are Disputed Issues of Fact Concerning Whether “Limited
Guardianship” Was Offered And, if it Was, Whether it Was Reasonable. The Agency Defendants argued below that Gen. Suthers offered Ms. Barber the option of assigning “limited guardianship” to Julianna’s grandfather to permit him to supervise her driving. It is, first of all, a hotly contested question of fact whether such a option was even offered. Ms. Barber states that it was not (JA 180-81), and all of the written communications from the Agency Defendants stated that nothing less than full guardianship would do. (See, e.g., Tool Letter (JA 199) (quoting Black’s Law Dictionary definition of “guardian” as a person
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“lawfully invested with the power, and charged with the duty, of taking care of the
person and managing the property and rights of another person”); Dodd Letter (JA
173) (stating that the Agency Defendants would only permit someone with “full
parental authority” to supervise Julianna’s driving).) Based on these letters --
especially the Dodd Letter, which came after Gen. Suthers’s alleged offer -- Ms.
Barber is entitled to the inference that no such offer was made. There is, thus, a
genuine issue of material fact whether the Agency Defendants offered the option
of limited guardianship.
But more importantly, even if such an offer had been made, it would not
have been a reasonable accommodation. “Limited guardianship” still requires an assignment of parental rights,6 a steps not required of nondisabled parents who
want their 15-year-olds to start practicing driving. Title II of the ADA -- which is
interpreted in harmony with Section 504, see Chaffin, 348 F.3d at 859 -- prohibits
the imposition of a surcharge on an individual with a disability in connection with
the provision of reasonable modifications. 28 C.F.R. § 35.130(f). This provision
6 Colorado statute provides that “a guardian of a minor ward has the powers of a parent regarding the ward’s support, care, education, health, and welfare.” Colo. Rev. Stat. § 15-14-208(1). Section 15-14-206(2) provides that the court “may limit the powers of a guardian otherwise granted by this part 2 and thereby create a limited guardianship.” Although a limited guardianship is, by definition, limited, it still involves the exercise of “powers of a guardian,” id. § 15-14-206(2), which are simply “the powers of a parent.” Id. § 15-14-208(1). Requiring Ms. Barber to assign limited guardianship to her father would have required her to assign to him some of her powers as Julianna’s parent.
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has been held to prohibit a six dollar fee for a disabled parking placard. See Dare v. Cal., 191 F.3d 1167, 1172 (9th Cir. 1999). It is, of course, far more onerous to require an individual to assign power to another person -- even limited power -over her child to obtain an accommodation so that the child may learn to drive.
The Supreme Court has held that “the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). These rights include the right of parents “to direct the upbringing and education of children under their control.” Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-535 (1925). It is unreasonable to ask a disabled parent to give up all or any part of that control to have what nondisabled parents get without relinquishing parental rights: access for their children to Colorado’s graduated driver licensing program to practice driving between the ages of 15 and 16.
Ms. Barber testified that while she loved her father dearly, she did not want to cede control -- even partial -- over Julianna to him. “If he and I had a difference of opinion on when she could drive or where she could drive or anything like that, I didn’t want to come to contest those issues with my father, and he really didn’t want that responsibility. All he wanted to do was be my eyes.” (JA 104 (p. 64:1419).) Because the Agency Defendants’ hypothetical alternative accommodation required Ms. Barber to assign parental rights, it is per se unreasonable. This is
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especially true here where the head of the DMV agreed that the accommodation Ms. Barber requested was reasonable and where that accommodation -designating the grandfather without assigning him any parental rights -- was eventually granted a month before Julianna’s 16th birthday.
Even if not per se unreasonable as an alienation of parental rights, assignment of limited guardianship would have required Ms. Barber to retain an attorney, draft legal documents, and perhaps go to court to ensure that this highly sensitive family matter was handled properly. As Ms. Barber explained,
Having to research that and educate myself on the finer points of power of attorney versus limited guardianship versus full guardianship versus whatever was a hardship, a burden, and an extra step, a requirement being put on me because I didn’t hold a license because of my disability. I was simply asking for a reasonable accommodation under the ADA that another licensed adult be allowed to supervise my daughter’s driving. (JA 104 (p. 65:1-9).) By requiring disabled parents to jump through legal hoops not required of nondisabled parents, even “limited guardianship” violates the prohibition on providing people with disabilities benefits that are “not equal to [those] afforded others.” 28 C.F.R. § 41.51(b)(1)(ii). The question whether this alternative was offered is disputed; and reasonableness of such a hypothetical offer is also a disputed issue of fact. See, e.g., Williams v. Philadelphia Housing Auth. Police Dep’t, 380 F.3d 751, 771(3d
-43-

Cir. 2004) (“[T]he question of whether a proposed accommodation is reasonable is a question of fact.” (Citations omitted.)). Summary judgment was thus improper.
CONCLUSION For the reasons set forth above, the Barbers respectfully request that this Court reverse the district court’s decision granting summary judgment on their claim for compensatory damages under Section 504.
STATEMENT REGARDING ORAL ARGUMENT The Barbers respectfully request oral argument both because the district court’s decision purported to create a new exception in established Supreme Court and Tenth Circuit law concerning compensatory damages under Section 504 and so that the undersigned might answer any questions the Court has concerning the extensive factual record.
CERTIFICATE REGARDING LENGTH OF BRIEF As required by Fed. R. App. P. 32(a)(7)(C), undersigned counsel certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i), and that this brief contains 10,310 words. Counsel relied on the word count of WordPerfect X3, which was used to prepare this brief.
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Respectfully submitted this 25th day of April, 2008

/s/ Amy F. Robertson Amy F. Robertson Timothy P. Fox FOX & ROBERTSON, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700

Kevin W. Williams Carrie Ann Lucas Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775

Attorneys for Plaintiffs-Appellants Julianna Barber and Marcia Barber

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Certificate of Service and Digital Submission
The undersigned hereby certifies that,
1. Appellants’ Opening Brief with Addendum was filed in writing and in Digital Form (as that term is defined in the General Order of August 10, 2007) and/or scanned PDF by esubmission to the United States Court of Appeals for the Tenth Circuit on April 25, 2008.
2. The Joint Appendix was filed in writing and on a compact disk to the United States Court of Appeals for the Tenth Circuit on April 25, 2008.
3. With the exception of the redaction of certain information covered by Paragraph C of this Court’s General Order of August 10, 2007 from the electronic version of the Joint Appendix, the documents submitted in Digital Form or scanned PDF format are exact copies of the written documents filed with the Court.
4. The digital submission referenced in Paragraph 1 has been scanned for viruses with the most recent version of Symantec AntiVirus (version 10.1.6.6000) and, according to the program, is free of viruses.

5. On April 25, 2008, copies of Appellants’ Opening Brief with Addendum and the Joint Appendix (in electronic and written versions) were sent to

Elizabeth McCann James X. Quinn Office of the Attorney General 1525 Sherman Street 7th Floor Denver, CO 80203

Kevin W. Williams Carrie Ann Lucas Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203

their last known addresses, by way of United States mail.

/s/ Amy F. Robertson Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Date signed: April 25, 2008

 </s> United States Court of Appeals, Tenth Circuit.
Julianna BARBER and Marcia Barber, Plaintiffs-Appellants, v.
STATE OF COLORADO DEPARTMENT OF REVENUE, State of Colorado Division of Motor Vehicles, M. Michael Cooke, In Her Official Capacity, and Joan Vecchi, In Her Official Capacity, Defendants-Appellees. No. 08-1032. July 7, 2008.
On Appeal from the United States District Court for the District of Colorado The Honorable Robert E. Blackburn District Judge D.C. No. 05-CV-00807-REB-CBS Statement Regarding Oral Argument
Answer Brief
John W. Suthers, Attorney General, Elizabeth H. McCann*, *, Deputy Attorney General, James X. Quinn[FNa], Assistant Attorney General, Civil Litigation and Employment Law Section, Attorneys for Defendants-Appellees, 1525 Sherman Street, 7th Floor, Denver, Colorado 80203, Telephone: (303) 866-4307, E-Mail:.
FNa. Counsel of Record
*i TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT. ... 1
STATEMENT OF THE ISSUES... ... 2
STATEMENT OF THE CASE ... 2
FACTS ... 4
SUMMARY OF ARGUMENT ... 12
STANDARD OF REVIEW ... 12
ARGUMENT ... 14
I. The district court properly granted the State Defendants' motion for summary judgment because Plaintiffs failed to present evidence necessary to sustain a Rehabilitation Act claim for damages ... 14

A. The 2004 statute provided Marcia Barber with an appropriate avenue to designate an alternate to supervise her daughter's driving ... 16
B. Assuming arguendo the 2004 statute discriminated, the State Defendants immediately amended the statute and offered Marcia Barber an appropriate modification ... 21
II. The district court properly granted the State Defendants' Motion for Summary Judgment because Plaintiffs failed to produce any evidence of intentional discrimination ... 25
A. Plaintiffs are not entitled to their “requested accommodation” instead they are entitled to a “reasonable accommodation” and thus failed to meet the elements necessary to sustain a Rehabilitation Act claim for damages ... 34
III. In the alternative, although not addressed in the district court's order, the remaining claim was properly dismissed because Plaintiffs admitted that they did not sustain any damages ... .37
IV. The district court properly denied Plaintiff's motion to reconsider ... .39
CONCLUSION ... 41
*ii STATEMENT REGARDING ORAL ARGUMENT. ... 41
*iii TABLE OF AUTHORITIES
CASES
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99 (E.D.Va. 1983) ... .,39
Alexander v. Choate, 469 U.S. 287 (1985) ... 16, 17, 18
All West Pet Supply Co. v. Hill's Pet Prods. Div., Colgate-Palmolive Co., 847 F.Supp. 858 (D. Kan. 1994) ... 40
Armstrong v. Turner Industries, Inc., 141 F.3d 554 (5th Cir. 1998) ... 37
Bailey v. Anderson 79 F.Supp.2d 1254 (D. Kan. 1999)... ... 20
Briggs v. Walker 88 F.Supp.2d 1196 (D. Kan. 2000) ... .20
Brumark Corp. v. Samson Res. Corp., 57 F.3d 941 (10th Cir. 1995)., ... 39

Celotex Corp. v. Catrett, 477 U.S. 317 (1986). ... 13, 37 Choate v. Champion Home Builders Co., 222 F.3d 788 (10th Cir. 2000)., ... 33 Clark v. Haas Group, Inc., 953 F.2d 1235 (10th Cir. 1992), cert. denied, 506U. S. 832 (1992) ... 13 Cone v. Longmont United Hospital Association, 14 F.3d 526 (10th Cir. 1994) ... 13 Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001).... ... .32 Ferguson v. City of Pheonix, 157 F.3d 668 (9th Cir. 1998) ... 29, 30, 31 Gotfredson v. Larsen LP 2006 WL 2943008, *3 (D. Colo. 2006)., ... .39 Gregory v. Otac, Inc., 247 F.Supp.2d 764 (D. Md. 2003). ... .24 Los Alamos School Bd. v. Wugalter, 557 F.2d 709 (10th Cir. 1977)... ... 33 Loulseged v. Akzo Nobel Inc., 178 F.3d 731 (5th Cir. 1999).... ... 25 Love v. Westville Corr Ctr., 103 F.3d 558 (7th Cir. 1996) ... 32 M.K. v. Tenet, 196 F.Supp.2d 8 (D.D.C. 2001) ... .,39 Matosantos Commercial Corp. v. Applebee's Intern., Inc., 245 F.3d 1203 (10th Cir. 2001) ... 14 McGeshick v. Principi 357 F.3d 1146 (10th Cir. 2004) ... 15 *iv Morgan v. Hitli, Inc., 108 F.3d 1319 (10th Cir. 1997) ... 16 Patton v. TIC United Corp. 77 F.3d 1235 (10th Cir. 1996). ... 16 Phelps v. Hamilton, 122 F.3d 1309 (10th Cir. 1997). ... 14 Powers v. MJB Acquisition Corp., 184 F.3d 1147 (10th Cir. 1999). ... 15, 16, 25, 29

Rennie v. United Parcel Service, 139 F.Supp.2d 159 (D. Mass. 2001)., ... .24 Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968 (10th Cir. 2002)... ... 15 Selenke v. Medical Imaging of Colorado, 248 F.3d 1249 (10th Cir. 2001)... ... 16, 34 Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000). ... 32, 39, 40 Simms v. Okla. Ex rel. Dep't. of Mental Health & Substance Abuse Servs., 165 F.3d 1321 (10th Cir. 1999) ... 13 Southeastern Community College v. Davis, 442 U.S. 397 (1979)., ... 17 Theriault v. Flynn 162 F.3d 46 (1st Cir. 1998) ... .20 Trobia v. Henderson, 315 F.Supp.2d 322 (W.D.N.Y. 2004), aff'd, 143 Fed. Appx 374 (2nd Cir. 2005) ... 24 Tyler v. City of Manhattan, 118 F.3d 1400 (10th Cir. 1997) ... 16, 27, 28, 29 Van Skiver v. United States, 952 F.2d 1241 (10th Cir. 1991)... ... 40 Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976 (9th Cir. 1997) ... 15 Welsh v. City of Tulsa, Okl. 977 F.2d 1415 (10th Cir. 1992)... ... 15 White v. York Int'l. Corp., 45 F.3d 357 (10th Cir. 1995) ... 13 Young v. City of Claremore, 411 F.Supp. 2d 1295 (2005) ... 35, 36 Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998) ... 14 STATUTES § 15-14-102(4), C.R.S. (2007)., ... 19 § 15-14-105, C.R.S. (2007).,, ... 19

§ 15-14-201, C.R.S. (2007)., ... 19 *v § 42-2-104(1)(c), C.R.S. (2007) ... 5 § 42-4-106(1)(b), C.R.S. (2007)., ... 5 29 U.S.C. §794 ... passim 29 U.S.C. § 794(a) ... 14 42 U.S.C. § 12131-34 ... passim RULES 28 C.F.R. § 35.130(g) ... 3 Fed. R. Civ. P. 59(e)., ... 39 OTHER AUTHORITIES Black's Law Dictionary 390 (6th ed. 1990) ... 37 PRIOR OR RELATED APPEALS - NONE Pursuant to the Federal Rules of Appellate Procedure, Defendants-Appellees the State of Colorado Department of Revenue, State of Colorado Division of Motor Vehicles, M. Michael Cooke and Joan Vecchi (the “State Defendants”), through the Colorado Attorney General, respectfully submit their Answer Brief. STATEMENT OF THE ISSUES A. Whether the district court properly granted the State Defendants' Motion for Summary Judgment because Plaintiffs failed to present evidence to meet the elements necessary to sustain a Rehabilitation Act claim for damages. B. Whether the district court properly granted the State Defendants' Motion for Summary Judgment because Plaintiffs failed to produce any evidence of intentional discrimination.

C. In the alternative, although not addressed in the district court's order, whether Plaintiff' s Rehabilitation Act claim failed because Plaintiffs admitted that they did not sustain any damages.
D. Whether the district court properly denied Plaintiff's Motion to Reconsider.
STATEMENT OF THE CASE
I. Nature of the Case.
Plaintiffs initially brought this action seeking damages, declaratory, and injunctive relief against the Colorado Department of Revenue, the Division of Motor Vehicles, the Executive Director of the Department of Revenue and the Senior Director of the Division of Motor Vehicles, all based on § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (the “Rehabilitation Act”), and Title II of the Americans with Disabilities Act, 42 U.S.C. § § 12131 -34 (the “ADA”).
Plaintiffs, a mother and her two daughters, maintained that a statute in effect prior to May of 2005 violated the Rehabilitation Act and the ADA because it only allowed a parent, stepparent or guardian who is a licensed driver to supervise a fifteen year old with an instructional permit prior to obtaining a driver's license. Because Marcia Barber (mother) is blind, and thus not licensed to operate a motor vehicle, she was not qualified pursuant to statute to supervise her daughter while her daughter accumulated experience necessary to receive an unrestricted driver's license when she turned sixteen. Plaintiffs argued that Defendants failed to make reasonable modifications by allowing Julianna's (daughter) grandfather, in the absence of any written authorization, to supervise her driving while she had her instructional permit prior to her sixteenth birthday.
II. Course of Proceedings
Plaintiffs filed their Complaint on or about May 2, 2005. Two days later they filed an Amended Complaint. On July 11, 2005, the State Defendants filed their Motion to Dismiss and Memorandum Brief in Support of Motion to Dismiss. After briefing, on October 17, 2005, the district court granted Defendants' Motion to Dismiss in part. Specifically, the Court dismissed the claims of Julianna and Madeline Barber concluding that they did not assert viable claims under either the ADA or the Rehabilitation Act. The Court further held that Plaintiffs failed to provide any argument or authority that 28 C.F.R. § 35.130(g) creates a cause of action in the absence of express statutory authority. The district court reconsidered a portion of its order and reinstated the claims of Julianna Barber.
After the ruling on the State Defendants' Motion to Dismiss, Plaintiffs filed a Second Amended Complaint. The Parties then stipulated to dismissal of the injunctive claims because of the expeditious amendment of the statute which allowed Marcia Barber to designate a licensed driver to supervise her daughter's driving prior to her sixteenth birthday. Thus, the sole remaining claim was a single claim for damages pursuant to the Rehabilitation Act.
III. Disposition Below
On May 14, 2007, after briefing, the district court granted State Defendants' Motion for Summary Judgment on the remaining claim. Plaintiffs filed a motion to reconsider. After briefing, on January 28, 2008 the district court denied the motion to reconsider. This appeal followed.

FACTS
Marcia and Julianna Barber are residents of Colorado Springs, Colorado. Marcia Barber suffers from retinitis pigmentosa and is limited in the major life activity of seeing. (Joint Appx. pp. 33-34). Marcia Barber does not have a driver's license. (Joint Appx. p. 37). Julianna' s father, though not disabled, does not have a driver's license. (Joint Appx. p. 36).
Colorado residents are eligible to apply for a minor's driver's license at age sixteen. Colo. Rev. Stat. § 42-2-104(l)(c). (Joint Appx. p. 36). At the age of fifteen, individuals may obtain a minor's instruction permit under certain circumstances. In order to obtain an instructional permit, a person who is fifteen years old, must be enrolled in an approved driver education course. In addition, the person must provide a written statement signed by the “parent, stepparent, or guardian and the instructor... establishing such enrollment. Colo. Rev. Stat. § 42-4-106(1)(b). (Joint Appx. p. 36). Prior to 2005, the permit issued pursuant to this section authorized the minor to drive “under the supervision of the parent, stepparent or guardian who cosigned the application for the minor's instruction permit if such parent, stepparent or guardian holds a valid driver's license.” (Joint Appx. pp. 85-86). Such permit also entitled the applicant to drive a motor vehicle, which is marked so as to indicate that it is a motor vehicle used for instruction, and which is properly equipped for such instruction, upon highways when accompanied by or under the supervision of an approved driver education instructor who holds a valid driver's license. (Joint Appx. p. 85).
Julianna Barber was born on XX/XX/1989. She turned fifteen on XX/XX/2004. (Joint Appx. p. 36). One month after her fifteenth birthday, on XX/XX/2004, Julianna Barber obtained a minor's instruction permit. She completed a driver's education course on October 23, 2004, and further completed six hours of driving with her driving instructor. (Joint Appx. pp. 36, 90, 130). In late October or early November of 2004, Marcia Barber inquired if Julianna could be permitted to drive with her grandfather, a licensed driver, until Julianna turned sixteen years of age. She was ultimately referred to Steve Tool, who at that time was the Senior Director of the Colorado Division of Motor Vehicles. (Joint Appx. p. 99). Mr. Tool investigated the issue. Marcia Barber's request was initially denied because the state statute only permitted a licensed parent, stepparent, or guardian to supervise a minor' s driving.[FN1] The only reason her request was denied was because of the express statutory language. (Joint Appx. pp. 112- 113). Marcia Barber admits that Tool was very interested in finding a solution. (Joint Appx. pp. 101, 104). Along these lines Marcia Barber was advised that as a result of her inquiries, the statute at issue was in the process of being amended. (Joint Appx. p. 101).
FN1. As noted above, the statute as it previously existed also permitted supervision by a driver education instructor. All of Marcia Barber's interactions with Mr. Tool were pleasant and professional. Marcia Barber admitted that Mr. Tool was very supportive and understood her issues. Marcia Barber never spoke with, or had any interaction with, the other individually named Defendants, Michael Cooke and Joan Vecchi.[FN2] (Joint Appx. pp. 100-101). Marcia Barber acknowledged that Steve Tool could not simply disregard the statute and allow Julianna's grandfather to supervise because “his hands were tied” as a result of the statutory language. (Joint Appx. pp. 100, 110). However, because he was very interested in finding a solution he sought guidance from the Colorado Attorney General' s Office and further facilitated the amendments to the statute at issue to accommodate all parents who do not have a driver' s license. (Joint Appx. p. 111).
FN2. Indeed, Joan Vecchi was not the head of the Division of Motor Vehicles at the time relevant to the allegations of the complaint. The head of the Motor Vehicle Division at the time was Steve Tool. However, he was not named as a defendant in Plaintiff's Second Amended Complaint. Approximately two months after her discussion with Steve Tool, in January of 2005, Marcia Barber called the Colorado Attorney General, John Suthers, to discuss the issue. Mr. Suthers advised Marcia Barber that it was pretty clear that this was a legislative oversight and that the statute should be changed. At that point Marcia Barber advised Suthers that amendment of the statute was already in the works. (Joint Appx. pp. 115-116). In addition to the long term solution of the amendment of the statute, they discussed the immediate issue of Julianna. Mr. Suthers advised Marcia Barber that he was certain that he could assist her in solving her immediate situation until the law was changed. (Joint Appx. pp. 115-119). Specifically, Mr. Suthers discussed with Marcia Barber the possibility of signing or drafting some sort of document or limited delegation of authority that would comply with the spirit of the statute to allow Marcia Barber's father to supervise the driving until such time as the statute was amended. (Id). However, Marcia Barber was unwilling to sign any document whatsoever to allow her father to supervise the driving. (Joint Appx.

pp. 102-103). She made this point very clear to Mr. Suthers. (Joint Appx. pp. 116-120). Suthers advised Marcia Barber that she would not be relinquishing any parental rights and that they simply needed to come up with some device by which she would designate the grandfather of the child, only for purposes of driving with the child, to comply with the statute. (Joint Appx. pp. 116-117). However, it became apparent to Suthers that Marcia Barber was both unwilling to sign any designation or document and that she was not intent on solving the immediate problem, but was in fact setting up a lawsuit. (Joint Appx. p. 119).
As a result of Marcia Barber's inquiries, and the efforts of the Defendants, effective May 27, 2005, approximately four months after her discussion with Attorney General Suthers, and six months before Julianna was eligible for an unrestricted driver's license, the Plaintiffs' requested amendments to the statute became effective. After this date, a minor driver under the age of 16, who obtained an instruction permit was entitled to drive under the supervision of the parent, stepparent, grandparent with power of attorney, or guardian who holds a valid driver's license. (Joint Appx. pp. 39, 121-123). The Department of Motor Vehicles was both involved in and in favor of making this legislative change as a result of Plaintiffs' request. (Joint Appx. p. 108). Later, the Colorado Legislature again amended the referenced statute to add:
If the parent, stepparent, grandparent with power of attorney, or guardian or foster parent, who signed the affidavit of liability pursuant to section 42-2-108(1)(a), does not hold a valid Colorado driver's license, the parent, stepparent, grandparent with power of attorney, or guardian or foster parent may appoint an alternate permit supervisor. An alternate permit supervisor shall hold a valid Colorado driver's license and be twenty-one years of age or older. (Effective date July 1, 2006)
The Department of Motor Vehicles suggested and supported these amendments. (Joint Appx. p. 112). Marcia Barber testified in her deposition that she was very pleased with the statutory changes and stated “that's all I ever asked for.” (Joint Appx. p. 106).
In order to be qualified to get her driver's license, Julianna needed to have a permit for 1 year, and during that year acquire 50 hours of behind the wheel experience. Thus, the earliest date she could have acquired her license was one year after receiving her permit on October 13, 2005, contrary to the assertions of Plaintiff's counsel in the opening Brief. (Joint Appx. pp. 90-91).
After obtaining her permit, Julianna practiced her driving and logged six hours in October and November of 2004 with her driving school and she logged an additional six hours with a volunteer driving instructor in May, June and July of 2005. In August, September, October and November of 2005, she drove with her grandfather and a friend of her mothers. (Joint Appx. pp. 130-133).
The statute allowing a permitted minor driver to drive with a grandparent with power of attorney went into effect on May 27, 2005. Although Marcia Barber did not want to sign a power of attorney, she signed the designation of Department of Motor Vehicles pursuant to the amended statute on August 10, 2005, designating Julianna' s grandfather to supervise, thus delaying the ability of the grandfather to supervise for three months. (Joint Appx. p. 134). In spite of Marcia Barber's delay, there was enough time for Julianna' s grandfather to supervise the driving for Julianna to have been able to get her license within a year after getting her permit, as required by law of all fifteen year olds. (Joint Appx. pp. 105, 134). Indeed, she completed her 50 hours and took her final drivers test for obtaining her license on November 10, 2005. She received her license on November 14, 2005, approximately thirteen months after obtaining her learner's permit, and one month after she was eligible. (Joint Appx. pp. 94; 129).
Julianna admits that she was not discriminated against. (Barber v. State, 2006 WL 213970 at *1; Joint Appx. pp. 95-96). Indeed, she acknowledges that the Defendants were not purposefully trying to discriminate against the disabled and that the issue resulted from a legislative oversight and that the law was appropriately changed. Additionally, Julianna admits that because her mother is required to sign an affidavit of financial responsibility it was important that the parent maintain some control as to who supervises the driving and designate in writing who could supervise the driving. (Joint Appx. pp. 92-93). She also admitted that she has not sustained any damages whatsoever. (Id). Marcia Barber admitted that the requirement that an unlicensed parent sign a designation document to allow someone else to supervise the driving was a requirement that any unlicensed parent would have

to meet whether or not they were disabled. (Joint Appx. p. 105). Finally, Marcia Barber did not see any psychologists, social workers or counselors and has not taken any medications for anything related to anxiety or emotional distress as a result of this incident. (Joint Appx. p. 100).
SUMMARY OF ARGUMENT
The district court' s decision should be affirmed because it is well reasoned and grounded on established legal principles. First, the district court properly granted the State Defendants' Motion for Summary Judgment because Plaintiffs failed to present evidence necessary to sustain a Rehabilitation Act claim for damages. Specifically, the 2004 statute provided Marcia Barber with an appropriate avenue to designate an alternate to supervise her daughter' s driving. Assuming arguendo that the 2004 statute discriminated, the State Defendants immediately amended the statute and offered Marcia Barber an appropriate modification. The district court also properly granted the State Defendants' Motion for Summary Judgment because Plaintiff's failed to produce any evidence of intentional discrimination or evidence of any damages. Finally, the district court properly denied Plaintiff' s motion to reconsider.
STANDARD OF REVIEW
An order granting a motion for summary judgment is reviewed de novo. Clark v. Haas Group, Inc., 953 F.2d 1235, 1237 (10th Cir. 1992), cert. denied, 506 U. S. 832 (1992). “We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court.” Simms v. Okla. Ex rel. Dep't. of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).
The purpose of summary judgment is to determine whether trial is necessary. White v. York Int'l. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions or affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.s. 317, 322 (1986). “Summary judgment procedure is properly regarded, not as a disfavored procedural shortcut, but, rather, as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.”’ Id., 477 U.S. at 327.
This Court “review[s] a summary judgment fully and may affirm on grounds other than those relied on by the district court when the record contains an adequate and independent basis for that result.” Cone v. Longmont United Hospital Association, 14 F.3d 526, 528 (10th Cir. 1994) (citation omitted). “Just as we may affirm a grant of summary judgment on any ground adequately supported by the record, we may direct that judgment be entered in favor of any moving party if the record adequately supports it.” Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 685 (10th Cir. 1998).
The Court reviews a district court' s order denying a motion to alter or amend the judgment under Rule 59(e) for an abuse of discretion. Matosantos Commercial Corp. v. Applebee's Intern., Inc., 245 F.3d 1203, 1213 (10th Cir.2001). Under an abuse of discretion standard, “a trial court's decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997).
ARGUMENT
I.The district court properly granted the State Defendants' motion for summary judgment because Plaintiffs failed to present evidence necessary to sustain a Rehabilitation Act claim for damages.

Section 504 of the Rehabilitation Act states: “No otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C. § 794(a) (emphasis added). Thus, the four elements of a prima facie claim under the Rehabilitation Act are: (1) that the plaintiff is disabled under the Act; (2) that she would be “otherwise *15 qualified” to participate in the program; (3) that the program receives federal financial assistance; and (4) that the program has discriminated against the plaintiff. Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 971 (10th Cir.2002); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir.1999); McGeshickv. Principi 357 F.3d 1146, 1150 (10th Cir. 2004). The Rehabilitation Act requires a claimant to show that the defendants allegedly improper conduct was done because of claimant's disability. See 29 U.S.C. § 794 (“solely by reason of her or his disability”). “The Act prohibits programs receiving federal financial assistance from discriminating against handicapped persons solely because of that handicap. Welsh v. City of Tulsa, Ok. 977 F.2d 1415, 1417 (10th Cir. 1992). “The duty to provide ‘reasonable accommodations' under the ADA and the Rehabilitation Act arises only when a policy discriminates on the basis of disability.” Weinreich v. Los Angeles County Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (emphasis in original). A plaintiff proceeding under Title II of the ADA must, similar to a Section 504 plaintiff, prove that the exclusion from participation in the program was “solely by reason of disability.” Id. To establish that defendant's alleged discrimination was “based on [claimant's] disability. plaintiff must ‘present some affirmative evidence that disability was a determining factor in [defendant's] decision.” *16 Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1259 (10th Cir. 2001) (quoting Morgan v. Hitli, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
Because all claims except Plaintiffs' claims for compensatory damages under the Rehabilitation Act were dismissed, Plaintiffs were required to prove intentional discrimination in order to recover compensatory damages. Powers v. MJB Acquisition Corp., 184 F.3d at 1153 (compensatory damages not available under section 504 of the Rehabilitation Act unless intentional discrimination); Tyler v. City of Manhattan, 118 F.3d 1400 (10th Cir.1997) (compensatory damages for mental and emotional injury not available under ADA absent intentional discrimination).
A. The 2004 statute provided Marcia Barber with an appropriate avenue to designate an alternate to supervise her daughter's driving.
A facially neutral governmental restriction does not deny “meaningful access” to the disabled simply because disabled persons are more likely to be affected by it. Patton v. TIC United Corp. 77 F.3d 1235, 1246 (10th Cir. 1996) citing Alexander v. Choate, 469 U.S. 287, 303-04 (1985) (holding that a ceiling on the number of inpatient hospital days paid for by Tennessees Medicaid program did not deny the disabled meaningful access to Medicaid services). Moreover, the Rehabilitation Act does not require state officials to *17 perceive of every possible scenario when a regulation might impact the disabled. At the same time, the position urged by respondents-that we interpret § 504 to reach all action disparately affecting the handicapped-is also troubling. Because the handicapped typically are not similarly situated to the nonhandicapped, respondents' position would in essence require each recipient of federal funds first to evaluate the effect on the handicapped of every proposed action that might touch the interests of the handicapped, and then to consider alternatives for achieving the same objectives with less severe disadvantage to the handicapped. The formalization and policing of this process could lead to a wholly unwieldy administrative and adjudicative burden Had Congress intended § 504 to be a National Environmental Policy Act for the handicapped, requiring the preparation of “Handicapped Impact Statements” before any action was taken by a grantee that affected the handicapped, we would expect some indication of that purpose in the statute or its legislative history. Yet there is nothing to suggest that such was Congress' purpose.
Alexander v. Choate 469 U.S. 287. “Section 504 seeks to assure evenhanded treatment and the opportunity for handicapped individuals to participate in and benefit from programs receiving federal assistance.” Alexander v. Choate 469 U.S. at 287 citing Southeastern Community College v. Davis, 442 U.S. 397 (1979)(emphasis added). It does not require the state to evaluate the impact of facially neutral regulations and determine how they can be implemented in a way most favorable to the handicapped. *18 Tennessee's refusal to pursue this course does not, as respondents suggest, inflict a “gratuitous” harm on the handicapped. On the contrary, to require that the sort of broad-based distributive decision at issue in this case always be made in the way most

favorable, or least disadvantageous, to the handicapped, even when the same benefit is meaningfully and equally offered to them, would be to impose a virtually unworkable requirement...
Alexander 469 U.S. 287.
Plaintiffs first argue that Marcia was denied access to the program that allowed her to supervise her daughter' s driving because she was not allowed to designate her father as a supervisor. However, she was not denied access “solely” because of her disability. Indeed, by her own admission, she faced the same obstacle that any non-disabled unlicensed parent faced in supervising his or her child's driving. She admitted that the requirement that an unlicensed parent sign a designation document to allow someone else to supervise the driving was a requirement that any unlicensed parent would have to meet whether or not they were disabled. Additionally, Julianna admitted that because a parent is required to sign an affidavit of financial responsibility, it is important that the parent maintain some control as to who supervises the driving and designate in writing who could supervise the driving. To allow such designation in the absence of a writing, as suggested by Plaintiffs would be irresponsible, and as noted by the Court, is per se not reasonable.
*19 Moreover, Marcia Barber had the ability to designate her father as a supervising driver. Under the former statute, she could have executed a limited guardianship or power of attorney allowing him the limited authority to supervise Julianna's driving.3 Contrary to her assertions, she could have made the appointment without court intervention. See Colo. Rev. Stat. § 15- 14-102(4) (“Guardian” means an individual at least twenty-one years of age, resident or non-resident, who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or by court. The term includes a limited, emergency, and substitute guardian but not a guardian ad litem.”); Colo. Rev. Stat. § 15-14-105 (A parent or guardian of a minor or incapacitated person, by power of attorney, may delegate to another person, for a period not exceeding twelve months, any power regarding care, custody, or property of the minor.); Colo. Rev. Stat. § 15-14-201 (“a person becomes a guardian of a minor by appointment by a parent or guardian by will or written instrument or upon appointment by the court....) (Joint Appx. pp. 135-138). Thus, the Plaintiffs had, but never exercised, the option of appointing Juliana' s grandfather as a limited *20 guardian solely for the purpose of supervising Juliana' s driving under the previous statute.[FN3]
FN3. Also as noted above, like any unlicensed parent, she could allow her daughter to drive with a driving instructor. Indeed, Julianna logged a number of hours with a driving instructor. (Joint App. pp. 91-92)
The additional requirement of a written instrument is not onerous and does not violate the Rehabilitation Act. See e.g. Theriaut v. Flynn 162 F.3d 46 (1st Cir. 1998) (State did not discriminate against motorist with cerebral palsy, in violation of Americans with Disabilities Act, when motorist was required to take road test, not ordinarily required, before driver's license allowing driving with hand controls was renewed); Bailey v. Anderson 79 F.Supp.2d 1254 (D.Kan. 1999) (State did not discriminate against motorist with vision impairment in violation of ADA by requiring her to submit report from driving instructor regarding her driving ability as condition for instruction permit); Briggs v. Walker 88 F.Supp.2d 1196 (D.Kan. 2000) (State director of vehicles did not discriminate against wheelchair restricted applicant for instruction permit to operate vehicle in violation of the ADA, by requiring that applicant submit medical certification as to her ability to operate vehicle safely before permit would be granted). Accordingly, summary judgment properly entered because the statute at issue did not discriminate against the disabled.
*21 B. Assuming arguendo the 2004 statute discriminated, the State Defendants immediately amended the statute and offered Marcia Barber an appropriate modification.
It is undisputed that when Marcia Barber raised the issue, the Defendants immediately implemented proceedings to change the statute. The Department of Motor Vehicles took quick action to support the amendment of the statute to address the legislative oversight. In order to resolve the immediate issue of Julianna' s driving until amendment of the statute, Marcia Barber spoke with the Colorado Attorney General himself. Mr. Suthers advised Marcia Barber that it was prestty clear that this was a legislative

oversight and that he was certain that he could assist her in solving her immediate situation until the law was changed. He discussed with Marcia Barber the possibility of signing or drafting some sort of document or limited delegation of authority that would comply with the spirit of the statute to allow Marcia Barber's father to supervise the driving until such time as the statute was amended. (Joint Appx. pp. 115-16; 118- 19). Plaintiffs maintain that there are disputed issues of fact concerning whether they were offered any accommodation other than amendment of the statute. However, Marcia Barber admitted in her deposition that she would not have accepted the accommodation Attorney General John Suthers *22 maintains he offered her - permitting her to sign a limited delegation of authority to permit her father to supervise Julianna's driving - in any event. Thus, this alleged dispute would not preclude summary judgment. Indeed, Marcia Barber admitted that she never even explored the possibility of executing a document that would not relinquish any parental rights, but would instead simply empower another individual to supervise the driving. (Joint Appx. pp. 102-103). She never inquired as to whether she could simply file a piece of paper with the Department of Motor Vehicles saying she was giving a limited guardianship for the purpose of supervising her daughter's driving. (Joint Appx. p. 103). Moreover, she admitted that she was unwilling to execute any document whatsoever to permit her father to supervise. Q: Okay. Did you follow up on his (Suthers) suggestion about exploring any kind of guardianship or limited guardianship? A: No. That's an unreasonable requirement. That's the crux of the issue. Q: Did you inquire with anyone or with him as to whether you could simply file a piece of paper saying that you were giving a limited guardianship for the purposes of supervising your daughter's driving? A: No. I continued to say, I am entitled to a reasonable accommodation under the ADA.
(Joint Appx. p. 103).
*23 Marcia Barber was unwilling to sign any document whatsoever to allow her father to supervise the driving. (Joint Appx. pp. 102-103; 116- 120). Thus, while Plaintiffs maintain that this was a “hotly contested issue” it was in fact a non-issue given Marcia Barber's admission that at that time she would not sign any document whatsoever. Indeed, the district court noted this fact in its order denying Plaintiffs Motion to Reconsider. Plaintiffs maintain that there are disputed issues of fact concerning whether they were offered any accommodation other than amendment of the statute. However, Marcia Barber admitted in her deposition that she would not have accepted the accommodation Attorney General John Suthers maintains he offered her - permitting her to sign a limited delegation of authority to permit her father to supervise Julianna's driving - in any event. Thus, this alleged dispute would not preclude summary judgment.
(Joint Appx. p. 305 fn 4). Plaintiffs refused to sign any document whatsoever to facilitate the requested accommodation until August of 2005 when Marcia Barber executed a document allowing her father to supervise Julianna' s driving.
Next, Plaintiffs argue that the delay associated with the change in the statute amounted to a denial. As noted by the district court, by legislative standards, the statute was expeditiously amended. Indeed, the statute was amended on May 27, 2005, approximately four months after the discussion with Attorney General Suthers and more than five months prior to the date *24 that Julianna was eligible to receive her license. (Joint Appx. p. 39). That statute permitted Marcia Barber to designate her father as a supervisor by merely signing a power of attorney. Plaintiffs cite no authority, and the district court found none, to support their argument that having to await the expeditious culmination of the legislative process or that the short delay between their request for accommodation and its fulfillment constituted intentional discrimination. (Joint Appx. p. 305). See, e.g., Trobia v. Henderson, 315 F.Supp.2d 322, 337 (W.D.N.Y. 2004) (delays in administrative processing of plaintiff's claims for reasonable accommodation did not constitute failure to accommodate by employer), aff'd, 143 Fed. Appx 374 (2nd Cir. 2005); Gregory v. Otac, Inc., 247 F.Supp.2d 764, 772 (D. Md. 2003) (restaurant that provided ramp for handicapped access did not violate ADA simply because ramp was not as convenient and direct as plaintiff would have preferred); Rennie v. United Parcel Service, 139 F.Supp.2d 159, 172 (D. Mass. 2001) (noting, in regard to “interactive process” required in employment situations, that ““[n]othing in the [ADA] regulations or in the cases indicates ... that an employer must move with maximum speed to complete [the] reasonable accommodation] process and preempt any possible concerns.... [T]he employer is entitled to move at whatever pace he chooses as long as the ultimate problem - the *25 employee's performance of her duties - is not truly imminent.”) (quoting Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 737 (5th Cir. 1999)).

The undisputed record revealed that the Defendants undertook extraordinary efforts to expeditiously change the statute. In fact it was the State Defendants' immediate action and investigation that permitted Julianna Barber to practice her driving and obtain her license upon becoming eligible.
II. The district court properly granted the State Defendants' Motion for Summary Judgment because Plaintiffs failed to produce any evidence of intentional discrimination.
A plaintiff cannot obtain compensatory damages from the state under the Rehabilitation Act without showing intentional discrimination. Powers v. MJB Acquisition Corp., 184 F. 3d at 1153. Plaintiffs do not take issue with the district courts statement of controlling law: Compensatory damages are available under section 504 only if plaintiffs can establish that defendants intentionally discriminated against them. Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999). “[I]ntentional discrimination can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.” Id. Deliberate indifference, in turn, “requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that [knowledge].” Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001).
*26 Rather, Plaintiffs maintain that because Marcia Barber disputed the Attorney General' s deposition testimony relating to their telephone conversation, summary judgment was not proper. Their argument fails. The district court granted Defendants' Motion for Summary Judgment because there was no evidence that the State Defendants intentionally discriminated against the Plaintiffs.[FN4]
FN4. As noted above, the Plaintiffs had absolutely no contact whatsoever with the individually named Defendants Cooke and Vecchi. Thus, it is apparent that these Defendants could not have discriminated.
[N]o reasonable jury could conclude based on the evidence presented that defendants failed to act on that knowledge in such a way as to constitute deliberate indifference.
The undisputed evidence demonstrated that, rather than acting with indifference to Plaintiffs' plight, the Defendants did everything in their power to address the issues Plaintiffs raised. Specifically, Defendants immediately undertook the onerous task of changing the statute at issue. Ms. Barber dealt directly with Steve Tool, who at that time was the Senior Director of the Colorado Division of Motor Vehicles.[FN5] Mr. Tool thoroughly investigated the issue. All of Marcia Barber's interactions with Mr. Tool were pleasant and professional. She admitted that Mr. Tool was very *27 supportive and understood her issues. (Joint Appx. pp. 99-101). She also admitted that Steve Tool could not simply disregard the statute and allow Julianna's grandfather to supervise because “his hands were tied” as a result of the statutory language. (Joint Appx. p. 100). However, he was very interested in finding a solution and sought guidance from the Colorado Attorney General's Office while working to clarify the statute at issue. The Department of Motor Vehicles was both involved in and in favor of making this legislative change as a result of Plaintiffs' requests. (Joint Appx. pp. 108, 112). Marcia Barber testified in her deposition that she was very pleased with the statutory changes and stated “that's all I ever asked for.” (Joint Appx. p. 106).
FN5. Because the sole remaining claim is exclusively for damages, it is unclear why Tool is no longer a defendant. Indeed, he is the only person with whom the Plaintiffs dealt.
More to the point, Plaintiffs admitted that no intentional discrimination occurred. Both Plaintiffs conceded that the 2004 statute was a mere legislative oversight, and there was no intent to discriminate against the disabled. This necessarily mandated dismissal of the Complaint. Tyler v. Manhattan, 118 F.3d at 1402-03. In Tyler, after concluding that a plaintiff must demonstrate intentional

discrimination to recover compensatory damages under the Rehabilitation Act, the Tenth Circuit affirmed the dismissal of a claim for compensatory damages under the ADA because the plaintiff merely alleged acts that had a disparate impact upon the disabled. *28 We have reviewed the pretrial order and agree with the district court that the order does not describe acts of intentional wrongdoing. Instead, it is apparent that the order describes acts and omissions which have a disparate impact on disabled persons in general but not specific acts of intentional discrimination against Tyler in particular. Furthermore, there are no allegations in the pretrial order that the City was motivated by animus toward the disabled generally or Tyler specifically.
Tyler v. City of Manhattan, 118 F.3d at 1403. Plaintiffs concede that the gravamen of their claim is based upon a theory of disparate impact. Barber v. State, 2005WL2657885 *3 (D. Colo. 2005). While this theory was sufficient to avoid dismissal of Plaintiff's claims for injunctive relief, it is insufficient here, in the complete absence of any evidence supporting a claim for intentional discrimination.
The admissions of the Plaintiffs as well as the efforts on behalf of the Defendants to reasonably accommodate Marcia Barber belie any claim of intentional discrimination or deliberate indifference. Moreover, the undisputed testimony of the Director of the Department of Motor Vehicles provided that he had no intention or desire in any way to discriminate against Marcia Barber. (Joint Appx. pp. 112-113). Defendants sought to amend the statute as soon as possible to enable Julianna's grandfather to supervise her driving. Accordingly, there is a complete absence of any evidence that the challenged conduct was motivated by “discriminatory animus.” See Tyler v. City of Manhattan, 118 F.3d at 1405.
*29 In concluding that a plaintiff must prove intentional discrimination to recover compensatory damages, the Tenth Circuit in Powers relied heavily upon Ferguson v. City of Pheonix, 157 F.3d 668 (9th Cir. 1998). See Powers v. MJB Acquisition Corp., 184 F. 3d at 1153. Ferguson is particularly instructive here, where the Defendants have already voluntarily and expeditiously remedied the equitable or injunctive claims. In Ferguson, deaf and hearing- impaired users of 9-1-1 emergency telephone service commenced an action under the ADA, the Rehabilitation Act, and § 1983 against city and the police department commander seeking declaratory, injunctive and damages relief. They maintained that the City's 9-1-1 emergency service did not respond effectively, or in some instances at all, to their Telecommunications Device for the Deaf (“TDD”). Plaintiffs relied on TDDs to communicate by telephone. It was undisputed that the Plaintiffs had been victims of various crimes and when they attempted to call 9-1-1 via their TDDs, the City's 9-1-1 system failed to work. Further, the city's TDD was operated in contravention of Department of Justice Regulations. After entering into a consent decree and settling the injunctive issues, the defendants filed a motion for summary judgment on the damage claim. The trial court found no evidence of intentional discrimination or deliberate indifference and granted summary judgment to the defendants on *30 the compensatory damage claim. In affirming summary judgment, the Ninth Circuit first noted, that: Substantial corrective remedies are available to plaintiffs, however, regardless of intent. In the present case, equitable relief is sufficient to remedy the problem. The principal purpose of this litigation as evidenced by the prayers for relief was to gain declaratory and permanent injunctive relief compelling compliance with the ADA and the Rehabilitation Act. The corrective action has already been taken by the City, so the basic problem itself has been solved.
Ferguson v. City of Phoenix 157 F.3d at 674 -675. As noted by the district court in that case, “The district court found no intentional violations, even saying that plaintiffs' evidence ‘is hardly the stuff of intentional conduct or deliberate indifference.”’ Ferguson v. City of Phoenix, 157 F.3d at 675 quoting Ferguson, 931 F.Supp. 668, 697 (D. Ariz 1996). The district court held that in order to show intentional discrimination, the plaintiffs had to show that the City had been “deliberately indifferent to the strong likelihood that their action or inaction was violating plaintiffs' federally protected rights.” In so doing, the court utilized a “deliberately indifferent” standard in place of the “discriminatory animus” test laid out in Guardians. Guardians, 463 U.S. at 584, 103 S.Ct. 3221. In the present case, we need not determine which standard is proper, since plaintiffs' claims fail under either one. In light of the evidence in the record, the situation clearly appears to be no more than at times some not uncommon bureaucratic inertia as well as some lack of knowledge and understanding about the DOJ Manual's requirements. There is nothing to show, even suggest, any deliberate indifference or discriminatory animus on the part of the City towards plaintiffs.

Ferguson v. City of Phoenix 157 F.3d at 675.
*31 Similarly in the case at hand, when the Barbers raised the issue, they were directed to the most senior individual in the Department of Motor Vehicles who immediately sought advice from the Attorney General's office. Mr. Tool, as the head of the Department, relied on that advice to tell Ms. Barber that a grandfather was not a guardian per se. (Joint Appx. pp. 164-165). The letter simply states the legal conclusion of the Attorney General that a grandparent is not a guardian by virtue of being a grandparent. The letter then goes on to state that the division is working with legislative staff to get the statute amended, a direct response to Ms. Barber's request for accommodation. As a result, the Department then worked on amending the statute to accommodate her request as expeditiously as possible. The Department acted in reliance on the language of the statute and the advice of the Attorney General's office in concluding that without some written document, the grandfather could not supervise the driving. These actions belie any claim of discriminatory animus or deliberate indifference.
As noted by the district court in its Order: “Deliberate indifference, in turn, ‘requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that [knowledge].”’ Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001).” (Joint Appx. p. *32 253). Plaintiffs concede that in order to meet this burden, they were required to demonstrate that the State Defendants' failure to act was “more than negligent, and involve[d] an element of deliberateness.” Duvall v. County of Kitsap, 260 F.3d at 1139 (9th Cir. 2001); see also Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996). They failed to present evidence sufficient to meet this burden. Thus, the district court correctly concluded that “no reasonable jury could conclude based on the evidence presented that defendants failed to act on that knowledge in such a way as to constitute deliberate indifference.”
Plaintiffs also invoke the Supremacy Clause in support of their argument that Defendants' actions constitute intentional discrimination. This argument is not directly raised in prior briefing. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (noting that a motion to reconsider “is not appropriate to ... advance arguments that could have been raised in prior briefing”). Moreover, Plaintiffs fail to recognize that the statutes at issue did not conflict. They cited no authority for the proposition that the Supremacy Clause required defendants to ignore duly enacted state statutes. Whether a federal law pre-empts state law is determined by explicit language of preemption in the statute. Choate v. Champion Home Builders Co., 222 F.3d 788 (10th Cir. 2000). “The *33 exercise of federal supremacy is not lightly to be presumed. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intent to do so.” Los Alamos School Bd. v. Wugalter, 557 F.2d 709, 714 (10th Cir. 1977)(citations omitted). “[W]here the conflict is only a potential one or peripheral to the purpose of the federal statute, state legislation will be allowed to stand.” Id. State law is pre-empted when it conflicts with federal law so that a private party cannot comply with both the federal and the state law, or where the state law impedes the accomplishment of the objectives of the federal law. Choate v. Champion Home Builders Co., 222 F.3d at 792.
Here, the prior statute permitted the State Defendants to comply with both the state statute and the Rehabilitation Act. As noted above, Plaintiffs had options. They always had the ability to execute a written document that would have permitted the grandfather's supervision, or allow a driving instructor to supervise. Moreover, the State Defendants immediately clarified the statute at issue. Thus, here is simply no conflict which warrants preemption into the driver's license arena - an area traditionally regulated by the states. Moreover, even if there were, the State Defendants' clarification *34 and amendment of the statute at issue negates any implication that they were deliberately indifferent to the Plaintiffs' concerns.
A. Plaintiffs are not entitled to their “requested accommodation” instead they are entitled to a “reasonable accommodation” and thus failed to meet the elements necessary to sustain a Rehabilitation Act claim for damages.
Plaintiffs next argue that summary judgment was improper because Marcia Barber was entitled to her “requested accommodation.” This is not an accurate statement of the law which requires states to make “reasonable accommodations.” Defendants' duty is to offer a reasonable accommodation, not plaintiffs' preferred accommodation. See Selenke v. Medical Imaging of Colorado, 248

F.3d 1249, 1263 (10th Cir. 2001). As noted by the district court: Plaintiffs suggest that these proposed accommodations were not reasonable because they required Marcia to relinquish her parental rights. She claims that instead, she should have been allowed simply to designate Julianna's grandfather to supervise her driving without creating a legal guardianship. However, it is clear that defendants reasonably viewed the statute as then worded to prohibit this type of informal designation, and plaintiffs do not contend that this interpretation of the then- existing law was inaccurate or improper.[FN6] An accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable. Plaintiffs' frustration with the limited legal options available to *35 them short of amendment of the statute is insufficient to sustain their burden of showing that defendants were deliberately indifferent to their federally protected rights.
FN6. Both Plaintiffs admitted in their depositions that such informal designation was not reasonable.
(Joint Appx. p. 254). Plaintiffs contend that the district court's determination that “an accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable” constituted manifest error of law is inaccurate. Defendants maintain that Plaintiffs were able to access the driving supervision program by a simple act of signing a limited guardianship or power of attorney limited to the sole issue of supervision of driving. As noted by the district court in its order granting summary judgment, requiring the Defendant to willfully ignore or violate the law in this context is not reasonable, particularly in light of the options presented to Marcia Barber.
In Young v. City of Claremore, 411 F.Supp. 2d 1295 (2005), the United States District Court in Oklahoma came to the same result. In that case, a golf cart user, who had cerebral palsy, sued the city, claiming that the ordinance barring use of carts on streets violated the ADA. The City moved for summary judgment. In granting the motion the court held: After careful consideration of (1) the Oklahoma state law allowing (rather than rejecting) particularized modifications of the ban on operation of golf carts in specific circumstances, which is expressly designed to reduce the safety risks associated with operation of golf carts on streets; and (2) the only alternative proposed by *36 Plaintiff, which is unfettered access to operate his golf cart around Claremore, the Court finds the modification requested by Plaintiff in this case is unreasonable as a matter of law.
Young v. City of Claremore, Okla. 411 F.Supp.2d at 1310. Similarly, Marcia Barber was unwilling to accept any accommodation other that being permitted to designate without a writing or limited guardianship in contravention of state law at the time.
Plaintiffs themselves point to the fundamental interest parents have in raising their children. Statutes require a written document from a parent when allowing someone else to supervise his or her child's driving in order to ensure that a parent has ultimate responsibility and agreement regarding supervision. This Court should remain mindful of the general principle that courts will not second guess the public health and safety decisions of state legislatures. See Young v. City of Claremore, Okla., 411 F. Supp. At 1310. Moreover, even the Plaintiffs acknowledge the importance of a writing supporting such designation. Julianna admitted that it was important that her mother maintain some control as to who supervises the driving and designate such in writing.
*37 III. In the alternative, although not addressed in the district court's order, the remaining claim was properly dismissed because Plaintiffs admitted that they did not sustain any damages.
Rule 56 “mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. at 322. Even assuming arguendo that Plaintiffs could prove an intentional violation of the Rehabilitation Act, this in and of itself does not entitle them to an award of compensatory damages. Consequently, we hold that damages liability under section [the ADA] must be based on something more than a mere violation of that provision. There must be some cognizable injury in fact of which the violation is a legal and proximate cause for damages to arise from a single violation.

Armstrong v. Turner Industries, Inc., 141 F.3d 554, 562 (5th Cir. 1998). “Compensatory damages are such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury. Damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him.” Black's Law Dictionary 390 (6th ed.1990).
Here, Plaintiffs admitted no cognizable injury exists. Marcia Barber testified in her deposition that she was very pleased with the statutory *38 changes and stated “that's all I ever asked for.” Julianna admitted that she did not sustain any damages whatsoever. While Marcia Barber is exclusively claiming emotional distress damages, she has not seen any psychologists, social workers or counselors and has not taken any medications for anything related to anxiety or emotional distress as a result of this incident. Thus, even assuming arguendo that Plaintiffs could muster the evidence to prove an intentional violation of the Rehabilitation Act, they admittedly sustained no damage whatsoever.
In addition, the only possible damage is the one month delay in obtaining Julianna Barber's license and the allegation that she had to compress her driving experience into a few months and did not get driving experience in a full range of road conditions. However, the evidentiary record reveals that the Defendants' efforts permitted Julianna Barber to receive her license in a timely manner. Julianna needed to have a permit for one year, and during that year acquire 50 hours of behind the wheel experience. Thus, the earliest date she could have acquired her license was one year after receiving her permit, October 13, 2005. She practiced her driving with various people, including her grandfather, during nine of the thirteen months between receiving her permit and getting her license. She acquired her 50 hours of driving experience in one year and one month from *39 the date she obtained her permit and obtained her driver' s license on November 14, 2005, one month after she was eligible. Plaintiffs have not identified any compensable damages associated with this one month time frame.
IV. The district court properly denied Plaintiff's motion to reconsider.
The Tenth Circuit has explained, “[g]rounds warranting a motion to reconsider include[:] (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d at 1012 (citing Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir.1995). “Such problems rarely arise and the motion to reconsider should be equally rare.” Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983); see M.K. v. Tenet, 196 F.Supp.2d 8, 12 (D.D.C.2001) ( “A motion pursuant to Fed.R.Civ.P. 59(e) to alter or amend judgment after its entry is rarely granted.”). Gotfredson v. Larsen LP 2006 WL 2943008, *3 (D. Colo. 2006).
Plaintiffs maintain that the Court committed manifest errors of law in granting Defendants' Motion for Summary Judgment. Specifically, Plaintiffs maintain the district court made manifest errors of law by: (1) making factual determinations; (2) determining that Plaintiffs' requested *40 accommodation was unreasonable because it was not argued by Defendants; and (3) determining that the requested accommodation that would require Defendants to violate the law was per se not reasonable.
Plaintiffs presented no proper grounds for reconsideration. They fail to demonstrate an intervening change in the law, the existence of new evidence, a mistake, or the need to correct clear error or to prevent manifest injustice. Plaintiffs' disagreement with the district court's legal conclusions does not present proper grounds for reconsideration. Accordingly, their motion was properly denied.
Rule 59(e) does not offer a party the opportunity to re-litigate its case after the court has rendered a decision. Servants of the Paraclete, 204 F.3d at 1012 (“It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.”); All West Pet Supply Co. v. Hill's Pet Prods. Div., Colgate-Palmolive Co., 847 F.Supp. 858, 860

(D.Kan.1994) (“A motion to reconsider or to alter or amend may not be used as a vehicle for the losing party to rehash arguments previously considered and rejected by the district court.”). Thus, it is not a tool to reraise issues that were or could have been raised in prior briefing. Van Skiver v. United States, 952 F.2d 1241, 1243 (10thCir.1991).
*41 All of the issues raised in the Plaintiffs' Motion were briefed prior to the district court's Order granting Defendants' Motion for Summary Judgment. Plaintiffs were simply re-raising issues that were raised in prior briefing. Accordingly, the district court did not abuse its discretion in denying the motion to reconsider.
CONCLUSION
For all the reasons stated above, the decision of the district court should be affirmed.
STATEMENT REGARDING ORAL ARGUMENT
Counsel for Appellees do not desire oral argument and do not believe oral argument would significantly aid or enhance the decisional process. Therefore, pursuant to Fed. R. App. P. 34(a)(3) and 10th Cir. R. 34.1.9, Appellees ask the Court to dispense with oral argument and to decide the appeal on the briefs.
Julianna BARBER and Marcia Barber, Plaintiffs-Appellants, v. STATE OF COLORADO DEPARTMENT OF REVENUE, State of Colorado Division of Motor Vehicles, M. Michael Cooke, In Her Official Capacity, and Joan Vecchi, In Her Official Capacity, Defendants-Appellees. 2008 WL 2805252 (C.A.10 ) (Appellate Brief )

 </s> No. 08-1032 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JULIANNA BARBER AND MARCIA BARBER,
Plaintiffs-Appellants
v.
STATE OF COLORADO, DEPARTMENT OF REVENUE, STATE OF COLORADO, DIVISION OF MOTOR VEHICLES,
M. MICHAEL COOKE, in her official capacity, and JOAN VECCHI, in her official capacity,
Defendants-Appellees.

On Appeal from the United States District Court for the District of Colorado
The Honorable Robert E. Blackburn, United States District Judge Civil Action No. 05-cv-00807-REB-CBS

APPELLANTS’ REPLY BRIEF

Respectfully submitted,
Amy F. Robertson Timothy P. Fox Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Attorneys for Plaintiffs-Appellants

Kevin W. Williams Carrie Ann Lucas Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775

TABLE OF CONTENTS Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Disputed Issues of Material Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. The Barbers Introduced Sufficient Facts to Support a Claim
for Intentional Discrimination under Section 504. . . . . . . . . . . . . . . . . . . . . 7 A. The Barbers’ Evidence Establishes Intentional Discrimination. . . . . 7 B. Defendants Did Not Offer a Reasonable Accommodation
by Attempting to Amend the Statute. . . . . . . . . . . . . . . . . . . . . . . . . . 8 II. The Agency Defendants’ Denial of Ms. Barber’s Requested
Accommodation Constituted Discrimination Under Section 504. . . . . . . . 12 A. Requiring Ms. Barber to Assign Limited Guardianship
is Not Meaningful Access.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. It Is Irrelevant That Non-Disabled Parents Without
Licenses May Also Be Affected by this Statute.. . . . . . . . . . . . . . . . 14 III. The Barbers’ Evidence to is Sufficient to Sustain a Claim
for Compensatory Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 IV. Defendants Did Not Respond to Several Key Arguments. . . . . . . . . . . . . . 18 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Certificate Regarding Length of Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
-i-

TABLE OF AUTHORITIES
Cases
Alexander v. Choate, 469 U.S. 287 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 15
Armstrong v. Turner Industries, Inc., 141 F.3d 554 (5th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18
Bailey v. Anderson, 79 F. Supp. 2d 1254 (D. Kan. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14
Briggs v. Walker, 88 F. Supp. 2d 1196 (D. Kan. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Canady v. J.B. Hunt Transport, Inc., 970 F.2d 710 (10th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Chaffin v. Kansas State Fair Board, 348 F.3d 850 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12, 15
Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Gregory v. Otac, Inc., 247 F. Supp. 2d 764 (D. Md. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Hampton v. Dillard Department Stores, Inc., 247 F.3d 1091 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Henrietta D. v. Bloomberg, 331 F.3d 261 (2nd Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
O’Shea v. Yellow Tech. Services, Inc., 185 F.3d 1093 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rennie v. United Parcel Service, 139 F. Supp. 2d 159 (D. Mass. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Roberts v. Progressive Independence, Inc., 183 F.3d 1215 (10th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Theriault v. Flynn, 162 F.3d 46 (1st Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Trobia v. Henderson, 315 F. Supp. 2d 322 (W.D.N.Y. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Troxel v. Granville, 530 U.S. 57 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Balistrieri, 981 F.2d 916 (7th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Statutes
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. . . . . . . . . . . . . . . 7
Colo. Rev. Stat. § 42-2-105.5(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9
Colo. Rev. Stat. § 42-2-106(1)(b)(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Colo. Laws 1999, chapter 334, section 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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INTRODUCTION The Agency Defendants’ Answer Brief relies on facts that are not found in -- and indeed that often contradict -- the record in this case, including: ! Asserting that they offered Ms. Barber the option of designating her
father to supervise her daughter’s driving without assigning parental rights to him, whereas the record includes two letters from Defendants -- one coming after the key disputed conversation -unambiguously stating that only someone with full parental authority could supervise Julianna’s driving; ! Asserting that Ms. Barber refused to accept any option that involved a written document, whereas the record demonstrates that she said no such thing; and ! Asserting that it is reasonable as a matter of law to reduce the year of driving practice to a mere three months, whereas the record demonstrates that the explicit purpose of the minor’s driver licensing program is to provide a full year of practice driving, as stated by the Colorado General Assembly. At a minimum, this sharp clash of material facts demonstrates that summary judgment was inappropriate in this case.
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DISPUTED ISSUES OF MATERIAL FACT Colorado law required (at the relevant time) that a 15-year-old driving with a “minor’s instruction permit” be supervised by a licensed parent, stepparent or guardian. Colo. Rev. Stat. § 42-2-106(1)(b)(2004). Plaintiff Marcia Barber, who is blind and therefore does not have a driver’s license, requested of the Agency Defendants the reasonable accommodation that she be permitted to designate her father to supervise her daughter, Plaintiff Julianna Barber, while she practiced driving. The parties dispute whether the Agency Defendants insisted that Ms. Barber assign guardianship of Julianna to her father (Julianna’s grandfather) in order to permit him to supervise Juliana’s driving practice, or whether the Defendants offered Ms. Barber the opportunity to designate the grandfather without assigning him parental rights. The parties present conflicting versions of a phone call between Ms. Barber and Attorney General John Suthers discussing this matter: Ms. Barber testified that he insisted she assign guardianship, informing her that “the ADA [doesn’t] apply to statutes.” (Joint Appendix (“JA”) 101.) In contrast, the Agency Defendants assert that Gen. Suthers offered Ms. Barber “the possibility of signing or drafting some sort of document or limited delegation of authority that would comply with the spirit of the statute to allow Marcia Barber’s father to supervise
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the driving” but that Ms. Barber “was unwilling to sign any document whatsoever to allow her father to supervise the driving.” Answer Br. at 8.
That the parties present conflicting versions of these key facts demonstrates that summary judgment was inappropriate. In addition -- in the summary judgment context in which all inferences must be drawn in favor of Ms. Barber, see O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1096 (10th Cir. 1999) -all of the evidence besides Gen. Suthers’s testimony supports Ms. Barber’s version. This evidence includes the following undisputed facts.
The Senior Director of the Division of Motor Vehicles sent Ms. Barber a letter stating that the grandfather would have to be a guardian and quoted the Black’s Law Dictionary definition of “guardian”: “a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person . . ..” (JA 199; Opening Br. Addendum Tab 8.) This letter is not cited in the Answer Brief’s recitation of the facts and is mentioned only in passing, without reference to the stringent definition from Black’s. See Answer Br. at 31.
Ms. Barber sent two letters after her conversation with Gen. Suthers, neither of which mentions the offer he alleges he made. Ms. Barber’s January 21, 2005 letter explains how painful it was to hear that “another person might be a more suitable guardian, even temporarily, due to some physical attribute,” requiring the
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inference that Gen. Suthers insisted on guardianship rather than a “limited delegation of authority,” (JA 217), and her January 25, 2005, letter states that she confirmed with the Department of Justice that “the ADA CAN override state statutes,” requiring the inference that her account of the phone call -- that Gen. Suthers told her that the ADA did not apply to state statutes -- was accurate. (JA 216.) Neither of these letters is mentioned or cited anywhere in the Answer Brief.
A letter from the Attorney General’s office after the phone call again insisted that only a driver with “full parental authority” could supervise Julianna’s driving. (JA 173; Opening Br. Addendum Tab 9.) This letter was written after the author was briefed by Gen. Suthers on his phone call with Ms. Barber and it was later endorsed by Gen. Suthers. (JA 120 (36:7 - 37:5), 212:1-3, 215:5-13.) Far from correcting what Defendants claim are Ms. Barber’s incorrect conclusions from her call with Gen. Suthers, this letter is completely consistent with Ms. Barber’s account of the call. This letter was not mentioned or cited in the Answer Brief.
The Answer Brief repeatedly misrepresents Ms. Barber’s testimony concerning her willingness to designate Julianna’s grandfather in writing. The brief states that Ms. Barber was “unwilling to sign any document whatsoever” to
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allow the grandfather to supervise Julianna’s driving. Answer Br. at 8, 22, 23.1
This is untrue and unsupported: there is no evidence that Ms. Barber said any
such thing. Instead, in the record pages on which the Agency Defendants rely, she
makes clear that she was unwilling to assign full or limited guardianship of her
daughter. (JA 102 (50:20 - 52:9) (she did not explore limited guardianship), 103
(55:19 - 56:5) (she did not “explor[e] any kind of guardianship or limited
guardianship” nor did she “inquire with anyone or with [Gen. Suthers] as to
whether [she] could simply file a piece of paper saying that [she was] giving a
limited guardianship for the purposes of supervising [her] daughter’s driving.”),
cited in Answer Br. at 8, 22, 23.)
There is no evidence -- in these cited pages or elsewhere -- that Ms. Barber
was unwilling to sign a written document memorializing the accommodation she
requested: designating her father to supervise Julianna’s driving without
assigning him parental rights. To the contrary, Ms. Barber testified that she was
never offered the opportunity to sign such a document until August, 2005, and that
1 See also id. at 3 (characterizing Plaintiffs’ position as insisting on designation “in the absence of any written authorization”), 18 (same), 21-22 (asserting that Ms. Barber would not have been willing to sign a “limited delegation of authority permitting her father to supervise Julianna’s driving”), 36 (Ms. Barber insisted on designation “without a writing”). The Answer Brief also spends a great deal of time asserting the importance of documenting the designation in writing. See, e.g., Answer Br. at 18, 20, 31, 36. This entire argument is a red herring, as Ms. Barber did not refuse to document her requested accommodation; she refused to assign guardianship of her daughter to another.
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she would have been willing to sign the same document she signed then -- when the state finally permitted her to designate without assigning parental rights -- at any time starting in October, 2004, when she first requested an accommodation. (JA 201-02 (¶¶ 5-6).) So when the Answer Brief states -- without citation -- that there is no disputed issue of fact because Ms. Barber “admitted in her deposition that she would not have accepted the accommodation Attorney General John Suthers maintains he offered her – permitting her to sign a limited delegation of authority to permit her father to supervise Julianna’s driving . . .,” Answer Br. at 21-22, it is simply wrong.
Finally, the Answer Brief does not cite, refer to, or attempt to explain away the fact that the Colorado General Assembly placed a great deal of importance on ensuring that teenage drivers have “additional behind-the-wheel training with a parent, guardian, or other responsible adult before obtaining a minor driver’s license . . ..” Colo. Rev. Stat. § 42-2-105.5(1)(b). Instead, Defendants attempt to redefine the harm their conduct caused as a one-month delay in Julianna obtaining her driver’s license. Properly understood in light of the purpose of the minor driver instruction program, however, Defendants’ denial of Ms. Barber’s requested accommodation took away seven to ten of the eleven relevant months of driving practice that is the goal of the statute.
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ARGUMENT I. The Barbers Introduced Sufficient Facts to Support a Claim for
Intentional Discrimination under Section 504. A. The Barbers’ Evidence Establishes Intentional Discrimination. The only remaining claim in the case is one for compensatory damages under section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”). The district court held that Plaintiffs had “easily” established that discrimination occurred, but that they had not established intentional conduct sufficient to support a claim for compensatory damages. (JA 253-54.) The question before this Court is whether disputed issues of material fact exist as to whether the Agency Defendants’ denial of Ms. Barber’s accommodation constituted intentional discrimination, that is, whether Ms. Barber had alerted the Agency Defendants to her request and whether the Defendants’ failure to act was deliberate rather than negligent. See Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)).2 In opposition to summary judgment, the Barbers submitted evidence:
2 The Agency Defendants agree that this is a correct statement of the standard for intentional conduct in the context of a request for an accommodation. See Answer Br. at 25, 31. Despite this, elsewhere Defendants assert that the gravamen of the Barbers’ complaint was disparate impact. Id. at 28; see also id. at 17 (asserting that section 504 “does not require the state to evaluate the impact of facially neutral regulations . . .”). This mischaracterizes Plaintiffs’ complaint, which pleaded a failure-to-accommodate violation of Section 504. (See JA 45 (Second Am. and Supplemental Compl. ¶ 77).)
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! that Ms. Barber repeatedly requested, both orally and in writing, the accommodation that her father be permitted to supervise Julianna’s driving, thereby putting the Agency Defendants on notice (JA 177:424, 180-181, 187:6-8, 198, 216, 217);
! that Ms. Barber informed the Agency Defendants that they were required to make accommodations under the ADA despite the state law guardianship provision (JA 198, 216); and
! that Defendants knowingly and repeatedly denied that request, both orally and in writing (JA 173, 180-181, 194-195, 199).
Although Gen. Suthers has a different account of his phone call with Ms. Barber, that simply creates a disputed issue of fact, rendering summary judgment inappropriate. The remainder of the evidence is undisputed: the Senior Director of the DMV admits he denied Ms. Barber’s request (JA 194:21 - 195:11), and the letters speak for themselves. (JA 173-74, 196-200, 216, 217.)
Plaintiffs submitted evidence sufficient to establish intentional conduct; summary judgment was thus inappropriate.
B. Defendants Did Not Offer a Reasonable Accommodation by Attempting to Amend the Statute.
Defendants argue that their cooperation in amending the statute constituted a reasonable accommodation. Plaintiffs explained in their opening brief that -- by
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leaving Julianna with at most three months of relevant driving practice -- this did not provide the “meaningful access” required by section 504. See Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857 (10th Cir. 2003) (holding that to assure meaningful access, reasonable accommodations may have to be made; (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985)); see Opening Br. at 34-35.
Defendants’ response is to attempt to shift the focus from the reduction in the driving practice deemed essential by the General Assembly, to the amount of time Julianna was delayed in ultimately obtaining her license. See Answer Br. at 11. This is completely irrelevant. The purpose of the statute is not to speed up the day on which teenagers receive their licenses; it is to try to ensure that they get “additional behind-the-wheel training with a parent, guardian, or other responsible adult before obtaining a minor driver’s license” at the age of 16. Colo. Rev. Stat. § 42-2-105.5(1)(b), see also Colo. Laws 1999 ch. 334, §§ 1(c), (d). By denying Ms. Barber’s request in October, 2004, and instead merely cooperating in an effort to amend the statute that did not bear fruit until May, 2005,3 the Agency Defendants cut that year of practice time to at most three months.
3 The Barbers assert that the statute as amended still required Ms. Barber to assign away legal rights through a step -- signing a power of attorney -that was not required of non-disabled parents. Thus the date on which Julianna could practice driving without this extra burden was August 10, 2005, when the state relented and permitted Ms. Barber to sign a “designation” that did not involve relinquishment of rights. At that point, only one month remained before Julianna turned 16 and could drive with any licensed driver.
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Plaintiffs cited to seven cases holding that it is a question of fact whether a delayed accommodation is reasonable. See Opening Br. at 36-37 & n.5. Defendants neither cite nor distinguish any of them. Instead, they rely on three cases that are easily distinguishable from the current circumstances. In Gregory v. Otac, Inc., 247 F. Supp. 2d 764 (D. Md. 2003), the defendant restaurant provided a ramp that the plaintiff customer was too impatient to use, choosing instead to attempt to proceed -- with his walker -- by the more direct route over the curb, causing him to fall. Defendants rely on the court’s statement that the ADA did not require a quicker route when the ramp was temporarily blocked. Id. at 772, cited in Answer Br. at 24. The extra time in that case was a matter of, at most, minutes and perhaps more important, there is no evidence that the ramp violated the ADA. Id. at 771.
Although delays in the other two cases were held to be reasonable, there is no evidence in either that time was of the essence. In Rennie v. United Parcel Service, 139 F. Supp. 2d 159 (D. Mass. 2001), the court specifically held that the employer could “move at whatever pace he chooses as long as the ultimate problem . . . is not truly imminent.” Id. at 172 (emphasis added). In Trobia v. Henderson, 315 F. Supp. 2d 322 (W.D.N.Y. 2004) -- an employment case -- the court held that the plaintiff employee was not qualified for the position he requested because he could not perform the essential functions. Id. at 332. The
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court further held that the defendant had fully participated in the required interactive process and that any delays in the administrative process were reasonable. Id. at 337. There is no evidence that the requested accommodation was time-sensitive and since the court ultimately held that the plaintiff was not qualified for the job he sought, any delay would have been harmless.4
In contrast, the accommodation requested in this case was time-sensitive -Julianna had only eleven relevant months in which to practice driving -- and Ms. Barber alerted Defendants to this fact early on. (See JA 198.) Because Defendants’ proposed alternative accommodation -- attempting to amend the statute -- cost Julianna most of the practice driving time deemed valuable by the General Assembly, it was improper to conclude that this alternative was reasonable as a matter of law. To the extent summary judgment was based on such a determination (see JA 305), it was inappropriate.
4 The Ferguson case on which Defendants rely at length is distinguishable based on the crucial fact that there was insufficient knowledge on the part of the defendant city in that case to establish deliberate indifference. Ferguson v. City of Phoenix, 157 F.3d 668, 676 (9th Cir. 1998). In contrast, Ms. Barber put the Agency Defendants on explicit and repeated notice of her requested accommodation, a key element in the intent standard that both parties agree applies here.
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II. The Agency Defendants’ Denial of Ms. Barber’s Requested Accommodation Constituted Discrimination Under Section 504. Discrimination under Section 504 can consist of a denial of a reasonable
accommodation where necessary to ensure that a disabled person has meaningful access to a recipient’s programs. See Chaffin, 348 F.3d at 857 (quoting Choate, 469 U.S. at 301). In the absence of a reasonable accommodation, Ms. Barber would either have had to give up guardianship of her daughter so she could practice driving -- an enormous imposition on fundamental liberty interests, see, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) -- or withhold her daughter from the driving practice deemed crucial by the General Assembly. Because neither of those options constituted meaningful access, the accommodation was required under Chaffin and Choate.
A. Requiring Ms. Barber to Assign Limited Guardianship is Not Meaningful Access.
Defendants argue that no discrimination occurred because Ms. Barber could have assigned limited rather than full guardianship. As noted above, there is considerable evidence that the state insisted that Ms. Barber assign full guardianship. (JA 173, 180-81, 199.) This is thus a disputed issue of fact.
Even if Ms. Barber could have secured practice driving time for Julianna by assigning the grandfather a limited guardianship, this would have represented the alienation of at least part of her parental rights over Julianna, a burdensome and
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potentially expensive step not required of non-disabled parents who want their teens to practice driving. See Opening Br. at 41-43.
The Agency Defendants do not cite any cases supporting the proposition that it is reasonable to ask a mother to give up parental rights to permit her daughter to participate in a state program such as the minor driver’s licensing program. Instead, they argue that “the additional requirement of a written instrument is not onerous.” Answer Br. at 20. There are several things wrong with this argument.
First, assigning away parental rights is a very different and much heavier burden than simply signing a written document.
Second, as explained above, there is no evidence that Ms. Barber refused to sign a written document designating her father to supervise Julianna’s driving; what she refused to do was assign parental rights to him. (JA 103.)
Finally, the three cases on which Defendants rely do not even relate to the signing of a document, much less assignment of parental rights. Rather, each of the cases involved the imposition of an additional eligibility or testing requirement on a driver with a disability, based on the state’s safety concerns relating to the driver’s disability. See Theriault v. Flynn, 162 F.3d 46, 47 (1st Cir. 1998) (state required the plaintiff to take an additional road test to demonstrate that his cerebral palsy would not affect his ability to safely drive a car); Bailey v. Anderson, 79 F.
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Supp. 2d 1254, 1255-56 (D. Kan. 1999) (state required plaintiff to submit a report detailing her ability to drive safely with device designed to correct visual impairments); Briggs v. Walker, 88 F. Supp. 2d 1196, 1197 (D. Kan. 2000) (state required plaintiff who used a wheelchair to submit completed medical certification before taking driving test).
The present case -- in contrast to the cited cases -- does not involve a disabled driver being required to prove she is a safe driver and Defendants do not argue that the statute’s limitation to licensed parents, stepparents and guardians was necessary to address safety concerns. To the contrary, granting the requested accommodation would have best served the State’s safety concerns by ensuring that Julianna got the maximum possible driving practice.
B. It Is Irrelevant That Non-Disabled Parents Without Licenses May Also Be Affected by this Statute.
Defendants argue that because Ms. Barber “faced the same obstacle that any non-disabled unlicensed parent faced,” she did not encounter discrimination “‘solely’ because of her disability,” as prohibited by Section 504. See Answer Br. at 18. However, as the District Court correctly held in denying Defendants’ motion to dismiss on these grounds,
For purposes of a disability discrimination claim, it does not particularly matter that the statute also impacts non-disabled persons who also do not have driver’s licenses. The Supreme Court has rejected “comparator” analysis in these types of cases. See McGary
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v. City of Portland, 386 F.3d 1259, 1266 (9th Cir. 2004) (citing Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999)). The inquiry is “not whether the benefits to persons with disabilities and to others are actually equal, but whether those with disabilities are as a practical matter able to access benefits to which they are legally entitled.” Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2nd Cir. 2003). (JA 21 n.1). In Henrietta D., for example, the plaintiffs -- individuals with AIDS and HIV who received services from the City of New York -- sued under Section 504 and the ADA, alleging that the City failed to provide them with adequate access to benefits. Id. at 264. The City argued that the plaintiffs had not shown that the lack of access was “‘by reason of [their] disability’ . . . rather than as a result of other forces . . . that affect the non-disabled as well as the plaintiffs.” Id. at 272-73. The Second Circuit held that the plaintiffs did not have to identify a “‘comparison class’ of ‘similarly situated individuals given preferential treatment.’” Id. at 273 (quoting Olmstead, 527 U.S. at 598). Similarly, Olmstead and its progeny demonstrate that Ms. Barber does not have to point to a class of unlicensed non-disabled parents who were able to designate others to supervise their teenagers’ driving. Rather, she must demonstrate -- as she has -- that the statute denied her meaningful access to the state program in question. Where a person with a disability is denied meaningful access, reasonable accommodations are required. See Chaffin, 348 F.3d at 857 (quoting Choate, 469 U.S. at 301).
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III. The Barbers’ Evidence to is Sufficient to Sustain a Claim for Compensatory Damages. Defendants argue that Plaintiffs did not suffer a cognizable injury.
Defendants’ argument mischaracterizes Julianna’s testimony, omits most of Ms. Barber’s relevant testimony, and ignores applicable circuit precedent.
Ms. Barber testified at some length concerning the injuries she suffered, including feeling “kicked in the teeth,” that “it was very painful,” and that it undermined her confidence and caused “humiliation over not being able to afford my daughter a normal opportunity.” (JA 178:7 - 179:6, 183:9-18, 185:4-18.)
Julianna Barber testified that it made her frustrated and angry, and that she missed out on at least one hundred hours of driving practice. (JA 220-21 (¶¶ 2-5); see also JA 95 (47:2-12).) It is undisputed that Julianna was unable to practice driving at all from November, 2004 until May, 2005, and was only able to practice for a total of six hours from May to August, 2005. (JA 130-33.) Defendants assert that “Julianna admitted that she did not sustain any damages whatsoever.” Answer Br. at 11 (citing JA 92-93), 38. This is incorrect. Julianna testified she did not lose any money as a result of losing driving practice. (JA 95 (47:24 - 48:4)). Nowhere does she testify that she did not sustain any damages.5
5 Elsewhere, Defendants assert that “Julianna admits that she was not discriminated against.” Answer Br. at 11. Julianna does not claim that she was subject to discrimination; rather, that she was injured by the discrimination against
(continued...) -16-

Plaintiffs provided sufficient evidence to defeat summary judgment and present their claim for emotional distress and other compensatory damages to the jury. This Court has held that “[e]motional distress is an intangible damage, and is an issue of fact within the providence of the jury.” Canady v. J.B. Hunt Transp., Inc., 970 F.2d 710, 715 (10th Cir. 1992). In Hampton v. Dillard Department Stores, Inc., 247 F.3d 1091, 1114-15 (10th Cir. 2001), this Court rejected the defendants’ argument that there was no support for a $56,000 emotional distress verdict, holding that the plaintiff’s own testimony that she felt “humiliated and disgraced” and feared ridicule and humiliation while shopping was sufficient to sustain it. See also U.S. v. Balistrieri, 981 F.2d 916, 932-33 (7th Cir. 1992) (holding that an award for emotional distress may be appropriate even where the only direct evidence is the plaintiff’s own testimony and that “[t]he jury is in the best position to evaluate both the humiliation inherent in the circumstances and the witness’s explanation of his injury.”).
The one case cited by Defendants, Armstrong v. Turner Industries, Inc., 141 F.3d 554 (5th Cir. 1998), is not to the contrary. The Fifth Circuit made clear that the plaintiff had “not alleged any actual injury flowing from the alleged [ADA]
5(...continued) her mother. See Ord. Granting Pls.’ Mot. to Reconsider at 2-5 (JA 28-31) (holding that Julianna “although not herself disabled, may assert claims under . . . the Rehabilitation Act for discrimination against a disabled person that directly injures that party.”)
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violation” and that his attorney “seemed to admit that, for this very reason, [he] was not entitled to damages relief.” Id. at 561 n.18. In contrast, Plaintiffs here do allege injuries flowing from the alleged ADA violation, and -- as explained above -- have presented sufficient evidence of such injuries to defeat summary judgment. IV. Defendants Did Not Respond to Several Key Arguments.
Plaintiffs made several arguments in their Opening Brief to which Defendants did not attempt to respond:
1. Plaintiffs cited at least nine cases -- five of them directly addressing reasonable accommodations -- that stand for the proposition that Section 504 and analogous provisions of the Americans with Disabilities Act trump inconsistent state law. Opening Br. at 27-28 & n.3. Defendants did not cite much less attempt to distinguish any of them.
2. Plaintiffs demonstrated that the history of Section 504’s damages remedy focuses on the notice to the recipient -- undeniably present here -- and there is no support for an exception for attempts to comply with state law. Opening Br. at 30-32. Defendants did not respond or distinguish those cases.
3. Plaintiffs cited circuit precedent that there is no “good faith” exception to the damages remedy under Section 504. Roberts v. Progressive Independence, Inc., 183 F.3d 1215, 1222-23 (10th Cir. 1999), Opening Br. at 32-33. Defendants did not respond or distinguish that case.
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CONCLUSION For the reasons set forth above and in Appellants’ Opening Brief, Appellants respectfully request that this Court reverse the district court’s decision granting summary judgment to Defendants and remand the case to the district court for trial.
CERTIFICATE REGARDING LENGTH OF BRIEF As required by Fed. R. App. P. 32(a)(7)(C), undersigned counsel certifies that this brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B)(i), and that this brief contains 4,322 words. Counsel relied on the word count of WordPerfect X3, which was used to prepare this brief.
Respectfully submitted this 21st day of July, 2008,

/s/ Amy F. Robertson Amy F. Robertson Timothy P. Fox FOX & ROBERTSON, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700

Kevin W. Williams Carrie Ann Lucas Colorado Cross Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203 303.839.1775

Attorneys for Plaintiffs-Appellants Julianna Barber and Marcia Barber

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Certificate of Service and Digital Submission

The undersigned hereby certifies that,

1. Appellants’ Reply Brief was filed in writing and in Digital Form (as that term is defined in the General Order of August 10, 2007) by esubmission to the United States Court of Appeals for the Tenth Circuit on July 21, 2008.

2. There being no redactions, the document submitted in Digital Form is an exact copy of the written document filed with the Court.

3. The digital submission referenced in Paragraph 1 has been scanned for viruses with the most recent version of Symantec AntiVirus (version 10.1.6.6000, scan engine 81.1.0.13, 7/19/2008 rev. 5) and, according to the program, is free of viruses.

4. On July 21, 2008, copies of Appellants’ Reply Brief (in electronic and written versions) were sent to:

Elizabeth McCann James X. Quinn Office of the Attorney General 1525 Sherman Street 7th Floor Denver, CO 80203

Kevin W. Williams Carrie Ann Lucas Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, CO 80203

their last known addresses, by way of United States mail.
/s/ Amy F. Robertson Amy F. Robertson Fox & Robertson, P.C. 910 - 16th Street, Suite 610 Denver, CO 80202 303.595.9700
Date signed: July 21, 2008

 </s> 562 F.3d 1222 (2009)

Julianna BARBER, by and through her next friend, Marcia BARBER, Marcia Barber,

Plaintiffs-Appellants,

v.

State of COLORADO, DEPARTMENT OF REVENUE; State of Colorado, Department of

Revenue, Division of Motor Vehicles; M. Michael Cooke, in her individual and official

capacity as Executive Director of the Colorado Department of Revenue, and Joan Vecchi,

in her individual and official capacity as Senior Director of the Colorado Division of Motor

1223

Vehicles, Defendants-Appellees. *1223

No. 08-1032.
United States Court of Appeals, Tenth Circuit.
April 15, 2009.
1224 *1224 Amy F. Robertson of Fox & Robertson (Timothy P. Fox of Fox & Robertson; Kevin W. Williams and Carrie Ann Lucas of Colorado Cross Disability Coalition, on the briefs), Denver, CO, for Plaintiffs-Appellants.
James X. Quinn, Assistant Attorney General (John W. Suthers, Attorney General, Elizabeth H. McCann, Deputy Attorney General, on the brief) of Civil Litigation and Employment Law Section, Denver, CO, for DefendantsAppellees.
Before KELLY, EBEL, and GORSUCH, Circuit Judges.
PAUL KELLY, JR., Circuit Judge.
Plaintiffs-Appellants, Julianna Barber and Marcia Barber, appeal from the district court's grant of summary judgment in favor of the Defendants-Appellees, Colorado Department of Revenue, Colorado Division of Motor Vehicles, M. Michael Cook in her official capacity as executive director of the Colorado Department of Revenue, and Joan Vecchi in her official capacity as Senior Director of the Colorado Division of Motor Vehicles (collectively, "DMV"), and the district court's subsequent denial of the Barbers' motion to reconsider and to alter judgment.
This appeal arises out of the Barbers' claim that the DMV violated § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and intentionally discriminated against Marcia Barber when it required a "parent, stepparent, or 1225 guardian" with a valid driver's license to supervise Julianna Barber's driving practice, as required by *1225 her minor's instruction permit.[1]See Colo. Rev.Stat. § 42-2-106 (2004) (amended 2005). The district court granted summary judgment, concluding that the Barbers failed to present a genuine issue of material fact as to their claim that the DMV acted intentionally or with deliberate indifference with respect to a federally protected right. Barber ex rel. Barber v. Colo., Dep't of Revenue, No. 05-cv-00807-REB-CBS, 2007 WL 1430103, at *2 (D.Colo. May 14, 2007) (unpublished). The district court further denied the Barbers' motion to reconsider and to alter judgment, concluding that the Barbers failed to establish any basis for such a motion. Barber ex rel. Barber v. Colo., Dep't of Revenue, No. 05-cv00807-REB-CBS, 2008 WL 207691, at *1 (D.Colo. Jan.24, 2008). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Background

Julianna Barber turned fifteen on September 8, 2004. Under Colorado law at that time, any minor age fifteen who was enrolled in an approved driver education course could apply for a minor's driving instruction permit. Colo.Rev.Stat. § 42-2-106(1)(b) (2004) (amended 2005). Julianna obtained her minor's permit on October 13, 2004. To qualify for a driver's license, persons under the age of eighteen were required to hold a permit for at least twelve months, complete fifty hours of supervised driving, and be at least sixteen years old. See

Colo.Rev.Stat. § 42-2-104(4)(a) (2004). Therefore, the earliest date upon which Julianna was eligible to apply for a driver's license was October 13, 2005. After meeting all of Colorado's requirements, Julianna obtained her driver's license on November 14, 2005.
Under the 2004 Colorado statute, a driver under the age of sixteen could practice driving only "under the supervision of the parent, stepparent, or guardian who cosigned the application for the minor's instruction permit if such parent, stepparent, or guardian holds a valid driver's license." Colo.Rev.Stat. § 42-2-106(1)(b) (2004) (amended 2005). We note that, on its face, the statute does not address what type of guardianship is required under the "guardian" option. When a minor reached the age of sixteen, those restrictions eased to allow supervision by "a licensed driver, twenty-one years of age or over." Colo. Rev.Stat. § 42-2-106(1)(a) (2004). Thus, Julianna was required by statute to drive under the supervision of a parent, stepparent, or guardian until she reached age sixteen on September 8, 2005. Because Julianna's mother, Marcia Barber, suffers from retinitis pigmentosa and is blind, she cannot hold a driver's license. Therefore, under the statute, she could not supervise Julianna's driving during the period October 13, 2004, through September 8, 2005. In addition, Julianna's father does not have a driver's license, does not have custody of Julianna, and does not live in Colorado.
Upon learning of the supervision requirement from Julianna's driving school instructors, Marcia Barber called her local DMV office, "asked for a reasonable accommodation, that [Julianna] be allowed to practice with another licensed driver, such as her grandfather," and was referred to Steve Tool, then senior director of the Colorado DMV. In mid to late October or early November, Marcia Barber and Steve Tool communicated about the Barbers' situation, and he began an investigation. Mr. Tool requested an informal opinion from the State Attorney 1226 General's Office "concerning *1226 whether a grandparent may act as a guardian to supervise" Julianna's driving. In a letter to Marcia Barber dated November 22, 2004, Mr. Tool reported that the State Attorney General's Office had informed him that the DMV could not permit Julianna's grandfather to supervise her driving, unless he was "a legally appointed guardian." The letter went on to define "guardian" as "`a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some peculiarity of status, or defect of age, understanding[, or] self-control, is considered incapable of administering his own affairs.'" Mr. Tool further indicated in his letter that legislators had an interest in amending the statute at that time.
On December 2, 2004, Marcia Barber sent Mr. Tool a letter thanking him for his assistance and reiterating her request for an exception to the guardian requirement due to her disability. In that letter, she cited to the Americans with Disabilities Act (ADA)[2] and requested a "reasonable modification to the guardian requirement [that] would allow [her] to ride in the car with [Julianna] and a licensed driver age 21 or older." See Dep't of Justice, Title II Technical Assistance Manual II-3.6100, http://www.ada.gov/taman2.html (last visited Jan. 30, 2009) ("A public entity must reasonably modify its policies, practices, or procedures to avoid discrimination."). As a result, Mr. Tool communicated with Mr. Robert Dodd of the State Attorney General's Office, and subsequently informed Marcia Barber that her request could not be granted due to the statute.
Marcia Barber then called Colorado Attorney General John Suthers in January 2005. Mr. Suthers testified that during the call he indicated that the legislature needed to address the statute, and that in the short-term he thought the problem could be solved with a limited delegation of authority. Marcia Barber testified that she did not recall Mr. Suthers discussing any solution that did not involve assigning parental rights. Although the testimony conflicts on whether a limited guardianship was discussed, we will assume, consistent with Marcia Barber's version of the call, that it was not, even though this is not a material fact given our disposition. However, during her deposition, Marcia Barber made it clear that she did not consider any form of guardianship a reasonable accommodation, and she voiced that sentiment in clear and unmistakable terms.
On January 21, 2005, Marcia Barber wrote to Mr. Suthers thanking him for his time, expressing her dissatisfaction with the suggestion "that another person might be a more suitable guardian, even temporarily," attaching an excerpt from the ADA that discusses the "reasonable modification" requirement, and reiterating her request for a reasonable modification to the statute that would permit Julianna to practice her driving. Then, on January 25, 2005, Marcia Barber wrote again to Mr. Suthers and also to Mr. Dodd, indicating that she had filed a Title II ADA complaint with the Department of Justice, and once more requesting that the "state simply provide

1227 reasonable modification under the statute (i.e.[, a]llowing my daughter to drive with a parent-delegate such as an *1227 uncle or grandfather) at the present time." Mr. Suthers did not respond to these letters.
Finally, on February 3, 2005, attorney Chris Méndez of The Legal Center for People with Disabilities and Older People wrote to Mr. Dodd on Marcia Barber's behalf, requesting a reasonable modification to allow an adult family member to supervise Julianna's driving. Mr. Dodd responded on February 23, 2005, indicating that the requested accommodation could not be made and that it was "critical that [minor drivers] be under the direct and immediate supervision of someone with full parental authority." In closing, Mr. Dodd indicated that the pending legislative amendment to the statute might provide Marcia Barber with satisfactory relief.
On May 27, 2005, the statute was amended to allow a grandparent with power of attorney who holds a valid driver's license to supervise drivers under the age of sixteen. Colo.Rev.Stat. § 42-2-106(1)(b) (2005). Finally, effective July 1, 2006, the statute was further amended to allow the appointment of an alternate permit supervisor who holds a valid Colorado driver's license and is twenty-one years or older. Colo.Rev.Stat. § 42-2-106(1)(b) (2006). In the interim, on August 10, 2005, the DMV allowed Marcia Barber to sign a "designation," granting Julianna's grandfather permission to supervise Julianna's driving until she turned sixteen. The designation form indicated that, by signing it, Marcia Barber was "in no way relinquishing any parental rights."
According to her driving logs, Julianna practiced six hours of driving with her driving school in October and November of 2004; six hours of driving with a driving instructor who donated his time in May, June, July, and early August of 2005; and the remainder of her required fifty hours with her grandfather and a family friend in August, September, October, and November of 2005. As discussed, while the earliest date upon which Julianna was eligible for a Colorado driver's license was October 13, 2005, she was granted her license on November 14, 2005, after meeting the DMV's requirements. The Barbers argue that their injury arises not from the brief delay in Julianna being issued her license, but rather from the fact that, because of the statute, Julianna was deprived of the full year of supervised driving experience that is the goal of the Colorado statute. See Colo.Rev.Stat. § 42-2-105.5(1)(b).
The Barbers filed their second amended complaint against the DMV on January 20, 2006, alleging violations of the ADA and the Rehabilitation Act. The statutory amendments rendered these allegations moot, save for the matter of the Barbers' entitlement to compensatory damages under § 504 of the Rehabilitation Act. Barber, 2007 WL 1430103, at * 1. On May 14, 2007, the district court granted summary judgment in favor of the DMV on that issue. Id. The Barbers moved for reconsideration, which the district court denied. Barber, 2008 WL 207691, at * 1. This appeal followed.
Discussion
We review the grant of summary judgment de novo and apply the same standard as the district court. T-Mobile Cent., LLC v. Unified Gov't of Wyandotte County, 546 F.3d 1299, 1306 (10th Cir.2008) (citing Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1112 (10th Cir.2007)). Rule 56(c) of the Federal Rules of Civil Procedure instructs that summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 1228 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T-Mobile, *1228 546 F.3d at 1306. In making this determination, we "examine the record and all reasonable inferences that might be drawn from it in the light most favorable to the non-moving party." T-Mobile, 546 F.3d at 1306 (internal citations and quotation marks omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. "A `complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'" Bruner v. Baker, 506 F.3d 1021, 1025 (10th Cir.2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). However, we caution that mere conclusory allegations are insufficient to establish an issue of fact under Fed. R.Civ.P. 56. Id.
We review a district court's denial of a Fed.R.Civ.P. 59(e) motion for reconsideration under an abuse of discretion standard. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997). We will not disturb such a decision "unless [we have] a definite and firm conviction that the lower court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances." Id. Accordingly, Rule 59(e) relief is appropriate only where "the court has misapprehended the facts, a party's position, or the controlling law." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). Here, because we are affirming the district court's grant of summary judgment under the broader de novo standard, we do not find that the district court abused its discretion in denying the Barbers' motion for reconsideration.
I. Applicable Statutory Language
Section 504 of the Rehabilitation Act provides:
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
29 U.S.C. § 794(a). The provision includes in its definition of a "program or activity" the operations of any "department, agency, special purpose district, or other instrumentality of a State or of a local government." 29 U.S.C. § 794(b)(1)(A). To establish a prima facie claim under § 504, a plaintiff must demonstrate that "(1) plaintiff is handicapped under the Act; (2)[she] is `otherwise qualified' to participate in the program; (3) the program receives federal financial assistance; and (4) the program discriminates against plaintiff." Hollonbeck v. U.S. Olympic Comm., 513 F.3d 1191, 1194 (10th Cir.2008) (citing Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1151 (10th Cir.1999)).
To recover compensatory damages under § 504, a plaintiff must establish that the agency's discrimination was intentional. Powers, 184 F.3d at 1152-53 (indicating that compensatory damages are available only upon a showing of intentional discrimination); see Davoll v. Webb, 194 F.3d 1116, 1140-41 (10th Cir.1999) (discussing same). Intentional discrimination does not require a showing of personal ill will or animosity toward the disabled person; rather, "intentional discrimination can be inferred from a defendant's deliberate indifference to the strong 1229 likelihood that pursuit of its questioned policies will likely result in a violation of federally protected *1229 rights." Powers, 184 F.3d at 1153; see also Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir.2001) ("Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that . . . likelihood."). The parties do not dispute that the DMV falls within the ambit of the Act, and we assume without deciding that Marcia Barber is an "otherwise qualified" individual with a disability.[3] Therefore, the central issue remaining is whether the DMV intentionally discriminated against the Barbers when it denied Marcia Barber's requested accommodation.
II. Analysis
The Barbers claim that they introduced sufficient evidence to demonstrate that the DMV acted with deliberate indifference to Marcia Barber's federally protected rights under § 504 when the DMV had knowledge of potential harm to those rights and failed to act on it. The facts in this unusual case require us to disagree.
The Supreme Court has recognized that § 504 is intended to ensure that "an otherwise qualified handicapped individual [is] provided with meaningful access to the benefit that the grantee offers. . . . [T]o assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made." Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); see also Mark H. v. Lemahieu, 513 F.3d 922, 937-38 (9th Cir. 2008). The test for deliberate indifference in the context of intentional discrimination comprises two prongs: (1) "knowledge that a harm to a federally protected right is substantially likely," and (2) "a failure to act upon that . . . likelihood." Duvall, 260 F.3d at 1139; see Powers, 184 F.3d at 1153; see also City of Canton, Ohio v. Harris, 489 U.S. 378, 388-92, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (discussing the deliberate indifference standard in the context of a § 1983 claim).
Turning to the level of intent required to satisfy the "failure to act" prong of the deliberate indifference test, a

"failure to act [is] a result of conduct that is more than negligent, and involves an element of deliberateness." Under the second element, "a public entity does not `act' by proffering just any accommodation: it must consider the particular individual's need when conducting its investigation into what accommodations are reasonable."
Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir.2002) (quoting Duvall, 260 F.3d at 1139) (internal citations omitted). While we do not dispute the DMV had knowledge that Marcia Barber requested accommodation, the summary judgment evidence, even in the light most favorable to the Barbers, simply would not support a finding that the DMV failed to act in response to that knowledge.
Two cases from our sister circuits are illustrative. In Ferguson v. City of Phoenix, 157 F.3d 668, 670-71 (9th Cir.1998), the Ninth Circuit affirmed a district court's grant of summary judgment where hearing-impaired users of the City's telecommunication device (TDD) 9-1-1 emergency service alleged intentional discrimination. There, the plaintiffs claimed that the City failed to respond to their complaints that the TDD service was faulty; however, the court affirmed the district court's conclusions that the City's internal self-investigations in response to "sporadic" 1230 complaints "followed by diligent effort by the City to upgrade its service" did not *1230 amount to deliberate indifference. Id. at 675-76.
In another case, the Fifth Circuit affirmed a district court's denial of judgment as a matter of law, finding that a hearing-impaired arrestee produced sufficient evidence to uphold a jury verdict in his favor under the ADA and the Rehabilitation Act. Delano-Pyle v. Victoria County, Tex., 302 F.3d 567, 575-76 (5th Cir. 2002). In that case, a police officer, despite having knowledge of the arrestee's disability, administered sobriety tests with verbal instructions, interrogated him at length, and administered Miranda warnings without any accommodations to ensure the arrestee understood those proceedings. Id. at 570-71, 575-76. Such a blatant disregard of the arrestee's disability was held to support a finding of deliberate indifference. Id. at 575-76.
The unusual facts of this case indicate that the DMV did not act with deliberate indifference. First, the DMV offered Marcia Barber the option of some form of guardianship, which was an eminently reasonable solution already included in the Colorado statute. According to Marcia Barber, Mr. Tool, then senior director of the DMV, seemed "genuinely concerned" and "very sympathetic" about the situation. Initially, Mr. Tool consulted the State Attorney General's Office in an effort to find a legally acceptable resolution to the issue. Although the State Attorney General's Office would not permit Julianna's grandfather to supervise her driving without some recognition of the statute's legal requirements, it did offer her the opportunity to permit him to do so with a guardianship.[4] Colorado Attorney General John Suthers testified that he further confirmed the option of creating some type of legal guardianship to enable Julianna to practice her driving, indicating, over Marcia Barber's objections to guardianship, that (1) he thought the DMV could find a way to allow the grandfather to supervise Julianna's driving under the statute; (2) he thought a limited guardianship might be appropriate; and (3) he did not think anyone was asking her to surrender any parental rights.
Second, in as early as November 2004, the DMV was aware that the statute was progressing toward amendment. Ordinarily, we would not view the fact of statutory amendment via the legislative process as evidence of action on the part of an accommodating institution. However, it is clear here that the DMV was aware that amendment was coming swiftly. The speed and diligence with which senior state officials sought to amend the statute figures prominently in our view of the case. In fact, the Colorado legislature acted about as quickly as a legislature can act. Under these unusual circumstances, we do not view the DMV as having acted with deliberate indifference. However, we stress that our holding in no way supports the view that state officials should be permitted to refuse an accommodation in favor of the more usual, lengthier legislative process.
We recognize that the accommodation proposed by Ms. Barber was very close to the one ultimately accepted by Colorado through legislative amendment. The fact that it was objectively reasonable, however, does not carry the 1231 day given another objectively reasonable alternative was *1231 available: Colorado law already provided a right to a limited guardianship. Although Marcia Barber does not recall discussing the possibility of a limited guardianship with Mr. Suthers, her deposition testimony clearly indicates that she was not willing to pursue the matter:

[W]hat I was asking for was a reasonable accommodation. Guardianship was guardianship. I thought that was an unreasonable requirement. That's not a reasonable accommodation. That's unreasonable.
. . . .
It's a legal requirement imposed 0907 that would be imposed on me because of my disability that would not be imposed on any other ablebodied person. It called my parenting abilities into question. It required me to give up decision-making responsibility. I wasn't looking to give up my parenting role.
In fact, Marcia Barber later indicated that she didn't "see why [she] should have been required to explore anything," referring to accommodations other than the one she requested that might have satisfied the statute. That Mr. Suthers chose not to respond to Marcia Barber's follow-up letters for her requested accommodation, which had already been discussed and foreclosed, does not merit a finding of deliberate indifference.
Essentially, Ms. Barber believed that (1) only her suggested accommodation was reasonable, (2) a guardianship would require her to give up her parenting role, and (3) a guardianship called her parenting ability into question. In contrast to Ms. Barber's position, "both parties have an obligation to proceed in a reasonably interactive manner" to ascertain a reasonable accommodation. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir.1999). Here, it is clear that Marcia Barber had no intention of engaging in the interactive process with the DMV unless it would yield to her requested accommodation. Surely, in this process Ms. Barber had an obligation to explore the possibility of a guardianship with the DMV, or at least not to refuse to consider the option outright.
However, as Marcia Barber made clear in her deposition, she was unwilling to accept any form of guardianship. In doing so, she foreclosed her ability to show that the interactive process would have led to a reasonable accommodation. Prior cases establish that a disabled plaintiff alleging that an employer failed to properly engage in the interactive process must also establish that the interactive process would have likely produced a reasonable accommodation. For example, in Frazier v. Simmons, this court held that a claimant alleging that his employer failed adequately to partake of the interactive process required by the ADA will lose on summary judgment if he fails to show "`that a reasonable accommodation was possible,'" and that the interactive process would have led to an accommodation. 254 F.3d 1247, 1261-62 (10th Cir.2001) (quoting Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 1174 (10th Cir.1999) (en banc)); see also Donahue v. Consol. Rail Corp., 224 F.3d 226, 233-34 (3rd Cir.2000) (addressing a Rehabilitation Act claim, and holding that "if, after a full opportunity for discovery, the summary judgment record is insufficient to establish the existence of an appropriate position into which the plaintiff could have been transferred, summary judgment must be granted in favor of the defendant0907even if it also appears that the defendant failed to engage in good faith in the interactive process"). In this case, Marcia Barber's testimony that she would not have accepted a limited guardianship as a reasonable 1232 accommodation suggests that, even if the DMV had participated in the interactive *1232 process and offered her a limited guardianship, she would have refused the offer. To bring a Rehabilitation Act claim based on the DMV's failure to participate in the interactive process, the Barbers must demonstrate that they "could have been reasonably accommodated but for the [DMV's] lack of good faith." Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 165 (3rd Cir.1999). The Barbers have failed to demonstrate that the DMV's participation in the interactive process would have resulted in a reasonable accommodation.
Furthermore, the Supreme Court has indicated, in the context of the ADA, that Congress has not defined "reasonable" as simply meaning the same as "effective," and that "demand for an effective accommodation could prove unreasonable because of its impact." U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 399-01, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002); see also Dilley v. SuperValu, Inc., 296 F.3d 958, 963 (10th Cir.2002) (stating that an accommodation will ordinarily be deemed unreasonable if it directly conflicts with a collectively bargained-for seniority system); Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir.2001) ("[W]hat plaintiff must show further . . . is that her requested accommodation is `reasonable.' And consistent with its usage throughout the law, the concept of reasonableness . . . constrains the plaintiff in what she can demand from the defendant."). To uphold the Barbers' claim for compensatory damages, we would necessarily need to hold that an institution's rejection of any requested accommodation, even when other reasonable options that are more acceptable to the

institution are available, results per se in deliberate indifference. The mere fact that the DMV did not accept Marcia Barber's suggested resolution does not establish a deliberate indifference to her situation or her rights.
In a related argument, the Barbers claim that the district court erred in concluding that the DMV could not have discriminated because it was adhering to a state statute when denying her requested accommodation. In making this claim, the Barbers specifically point to the following language in the district court's order:
An accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable. Plaintiffs' frustration with the limited legal options available to them short of amendment of the statute is insufficient to sustain their burden of showing that defendants were deliberately indifferent to their federally protected rights.
Barber, 2007 WL 1430103, at *2. Essentially, the Barbers claim that the DMV disregarded its duties under § 504 in adhering to the Colorado licensing statute, thus triggering a conflict with the Supremacy Clause.
It is well established that "Congress has the power to preempt state law." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000). A state statute must yield when it conflicts with a federal statute, as in the case where "`[the challenged state statute] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Id. at 373, 120 S.Ct. 2288 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). "What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Id.
The Supremacy Clause does not govern the outcome of this case; there was no conflict because Marcia Barber had an option under the statute other than simply seeking amendment or being denied meaningful access, 1233 namely, some form of guardianship *1233 allowing Julianna's grandfather to supervise her driving. That the Barbers ultimately achieved a political victory in obtaining a statutory amendment does not equate to a valid legal claim that the statute conflicted with the Rehabilitation Act. Marcia Barber rejected the obvious solution under the statute. That she did so does not mean that the statute conflicted with § 504 or that the DMV failed to acknowledge its duty under § 504, nor does it entitle the Barbers to compensatory damages.
In so holding, we in no way affirm the district court's conclusion that "[a]n accommodation that would have required defendants to willfully ignore or violate the law is per se not reasonable." Barber, 2007 WL 1430103, at *2. As Judge Easterbrook so aptly described the same situation in Quinones v. City of Evanston, Ill., "[Defendant] believes that it is compelled to follow the directive from the state, but the Supremacy Clause of the Constitution requires a different order of priority. A discriminatory state law is not a defense to liability under federal law; it is a source of liability under federal law." 58 F.3d 275, 277 (7th Cir.1995) (citing Williams v. Gen. Foods Corp., 492 F.2d 399, 404 (7th Cir. 1974)). Reliance on state statutes to excuse non-compliance with federal laws is simply unacceptable under the Supremacy Clause.
In this case, the DMV took adequate steps to ameliorate the situation by engaging in discussion about guardianship and pursuing legislative amendment. Further, even assuming that the DMV did not adequately participate in the interactive process in this case, the Barbers have failed to show that the DMV's participation in the interactive process would have likely produced a reasonable accommodation. Therefore, we affirm the district court's grant of summary judgment and find no grounds to reverse its denial of the motion to reconsider.
AFFIRMED.
GORSUCH, J., Circuit Judge, concurring in the judgment.
When this dispute began, Colorado law provided that 15-year old minors could receive a permit to practice driving under the supervision of a "parent, stepparent, or guardian" before becoming eligible for a full driver's license at age 16. Colo.Rev. Stat. § 42-2-106. The public safety rationale for this statute was obvious: to ensure that new, minor, and as-yet unlicensed, drivers operated under the care of someone with lawful authority to control their conduct on the roads. At the same time, the guardian discussed in the statute didn't have to be a person with full guardianship authority. Instead, it could be an individual with authority limited solely to overseeing the child's driving. See Colo. Rev.Stat. § 15-14-102(4) (recognizing limited guardianships); Colo.Rev.Stat. §

15-14-105 ("a parent or guardian" may delegate "any power," however small, "regarding care, custody, or property" of a child to another). Under Colorado law, then, Ms. Barber was free simply to sign a piece of paper 0907 no court involvement or other formality required 0907 giving any person of her choosing authority to supervise (only) her daughter's practice driving sessions. Plaintiffs have admitted that they never considered, and would never have agreed to, this option. But no one has shown why this option 0907 designed to ensure that 15 year-old minors operate motor vehicles under the supervision of an adult with lawful authority over them 0907 discriminated against the handicapped, such that the need for a remedial interactive process aimed at finding a reasonable 1234 accommodation was triggered. Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 *1234 L.Ed.2d 661 (1985); see also Wisconsin Comty. Servs. v. City of Milwaukee, 465 F.3d 737, 751 (7th Cir.2006) (en banc) (reasonable accommodation is required only if it is "necessary to avoid discrimination on the basis of a disability") (emphases deleted); Mark H. v. Lemahieu, 513 F.3d 922, 937 (9th Cir.2008) ("reasonable modifications" to state regulatory schemes are required if but only if "necessary to correct for instances" where disabled persons are "prevented from enjoying `meaningful access' to a benefit because of their disability") (emphasis deleted). To be sure, had Colorado law imposed more onerous restrictions on handicapped persons 0907 for example, forcing them to assign away full guardianship rights, or to endure needless bureaucratic red tape 0907 we would have a very different case. But Colorado law did no such thing.[1]
If Colorado law had discriminated on the basis of disability, in violation of the Rehabilitation Act, the State defendants argue they still shouldn't be held liable, in part because they were bound to follow State law unless and until the State legislature stepped in to change State law. But a state law at odds with a valid Act of Congress is no law at all. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819); U.S. Const. art. VI, cl. 2 (Supremacy Clause). Accordingly, the demands of the federal Rehabilitation Act do not yield to state laws that discriminate against the disabled; it works the other way around. See Quinones v. City of Evanston, Ill., 58 F.3d 275, 277 (7th Cir. 1995). State officials who rely on their compliance with discriminatory state laws as evidence of their reasonableness will normally find themselves proving their own liability, not shielding themselves from it. That result is avoided here only because the Colorado law in question was not discriminatory.
[1] Julianna Barber's mother, Marcia, is blind and thus cannot obtain a driver's license, and Julianna's father does not have custody of her, does not have a driver's license, and lives out of state.
[2] The ADA and § 504 of the Rehabilitation Act both require reasonable modification. See Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857 (10th Cir.2003) (discussing the requirement of "meaningful access" under the ADA); see also Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). Although the Barbers originally brought claims under both the ADA and § 504 of the Rehabilitation Act, they proceeded only with the damages claim under § 504.
[3] We do so in light of the fact that the government has not raised this issue on appeal.
[4] Although a full guardianship was not a reasonable accommodation, the statute clearly also authorized a limited guardianship. The Attorney General and DMV officials may never have called that portion of the statute to Marcia Barber's attention, but it was a part of Colorado law, and, because it was an objectively reasonable reading of that law, we are bound to defer.
[1] Plaintiffs argue that, in a February 23, 2005 letter, the State misrepresented Colorado law by asking Ms. Barber to sign a document giving full, not limited, guardianship authority to another person. The letter, however, simply stated that, for the "youngest of drivers just learning to drive," State law required "that they be under the direct and immediate supervision of someone with full parental authority." By definition, a limited guardian has full parental authority, albeit for prescribed purposes, sometimes even very modest purposes (such as the supervision of a minor while driving). The State thus did not misrepresent to plaintiffs the availability or nature of its limited guardianship statutes.
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[CONTENT] Two | the Colorado Department of Motor Vehicles ||| Colorado | hours |||  |||  ||| Colorado | Title II | Americans | ADA | 42 | 12101 | Section 504 | the Rehabilitation Act | 1973 | 29 | 794 |||  ||| Colorado | 16 | 50 hours ||| § | § | 42 | 106(1)(a ||| 42 | 2004 ||| May 27, 2005 | 42-2-106(b | 2004 |||  ||| August 10, 2005 | DMV ||| October 17, 2005 | the District Court |||  |||  ||| January 04, 2006 ||| Title II | ADA | the Rehabilitation Act ||| November 14, 2005 | two months | 16 ||| two-month | the previous year | two months ||| July 1, 2006 | Colorado | twenty-one years |||  ||| May 14, 2007 | 2007 | 1430103 ||| Section 504 | Rehabilitation Act | 29 | 794 |||  ||| June 21, 2007 ||| April 15, 2009 | the U.S. Court of Appeals | the Ninth Circuit ||| Barber | Colorado | 562 | 1222 | 9th | 2009 ||| The Ninth Circuit | the Rehabilitation Act ||| DMV | DMV ||| The Court of Appeals' | May 7, 2009 [SUMMARY] Two minors and their mother and their mother sued the Colorado Department of Motor Vehicles.  Colorado law required that a teenager log a certain amount of hours driving under the supervision of a licensed parent or guardian. Because the mother is blind, she was unable to supervise her daughters' driving.  The girls' father did not have custody and lived out of state, leaving no qualified adult to supervise them in completeing the requirements for a driver's license.	

The plaintiffs claimed that the defendants failed to make a reasonable modification of Colorado law, which violated Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.

The plaintiffs sought a declaration that the defendants had violated the federal statutes, an injunction against the defendants' further discrimination, monetary compensation, attorney's fees and costs, and other equitable relief.

Under Colorado law, individuals who are 16 can apply for a minor's driver's license provided they have logged 50 hours of driving experience with their learner's permit, under the supervision of a qualified adult. C.R.S. §§ 42-2-104(1)(c) & 106(1)(a). Another statute, C.R.S. § 42-2-106(b) (2004), restricts minors with learners' permits to driving under the supervision of "a parent, stepparent, or guardian with a valid driver's license."

On May 27, 2005, the legislature amended § 42-2-106(b) (2004) to include grandparents with powers of attorney as acceptable supervisory drivers, but the mother stated she would not relinquish her parental rights to her daughters' grandfather. Thus again, under the amended statute there was no eligible driver for supervision.  On August 10, 2005 the DMV allowed the mother to sign a "designation" giving the grandfather permission to supervise but indicating that she was "in no way relinquishing any parental rights."

On October 17, 2005, in an unpublished order, the District Court dismissed the individual claims of the minor named plaintiffs because they were not themselves disabled. Although they had an association with their mother, who is disabled, there was no employment relationship with the defendant, which is required for "associational disability" claims. The court permitted the organizational plaintiffs and the mother to continue the lawsuit.

On January 04, 2006, the court granted the plaintiffs' motion to reconsider its previous opinion and reinstated the minors as named plaintiffs. The court held that a party, although not herself disabled, may assert claims under Title II of the ADA and under the Rehabilitation Act for discrimination against a disabled person that directly injures that party. 

The older daughter obtained her driver's license on November 14, 2005, two months after she turned 16.  She claimed compensatory damages because of the two-month delay and because she had not been able to experience driving under different road conditions over the previous year, having compressed her entire learning experience into two months. 

On July 1, 2006, the legislature further amended the statute to allow the appointment of an alternate permit supervisor who holds a valid Colorado driver's license and is twenty-one years or older, without any relinquishing of parental rights or power of attorney over the child. Nonetheless, the plaintiffs continued the lawsuit.

On May 14, 2007, the court granted the defendants' motion for summary judgment in an unpublished opinion, 2007 WL 1430103. The court found that after the amended statute mooted the claims for equitable relief, the only remaining claim was for compensatory damages under Section 504 of the  Rehabilitation Act, 29 U.S.C. § 794. However, because the plaintiffs could not prove that the defendants acted intentionally -- i.e. with "deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights," they could not sustain a claim for damages. The court denied the plaintiffs' motion to reconsider in an unpublished opinion on June 21, 2007.	

<b>Appeal</b>

In a published opinion on April 15, 2009, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court order granting summary judgment to the defendants. Barber v. Colorado, Dept. of Revenue, 562 F.3d 1222 (9th Cir. 2009). The Ninth Circuit agreed that the plaintiffs failed to prove intent as the Rehabilitation Act required. Especially relevant were the facts that the DMV offered reasonable accommodation by allowing the mother to designate the grandfather as a supervisor and that the DMV was aware the state legislature was progressing towards amendment. The Court of Appeals' mandate on is the final entry on the district court docket, on  May 7, 2009.

