Tenth Circuit Summaries

• Publication year: 2004
• Pages: 145
• Citation: Vol. 33 No. 4 Pg. 145

33 Colo.Law. 145 Colorado Lawyer 2004.

2004, April, Pg. 145. Tenth Circuit Summaries

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145

Vol. 33, No. 4, Pg. 145

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page 145]

From the Courts
U.S. Court of Appeals for the Tenth Circuit
Tenth Circuit Summaries

Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.
Full copies of the Tenth Circuit decisions are available on the CBA website at http: //www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118

Americans with Disabilities Act - Remand to State Court - Fraudulent Joinder - Independent Federal Jurisdiction - Breathing is Major Life Activity - Substantially Limits Ability - Reasonable Accommodation - Interactive Process - Failure to Mitigate

Albert v. Smith's Food & Drug Centers, Inc., No 02-2052, 01/29/04, D.N.M., Judge Murphy

Plaintiff suffered from asthma, which limited her activities. She was employed by defendant ("Smith's") for several years, but as her asthma worsened, she requested a transfer to a position that would accommodate her condition. She was not reassigned. She sued in a state court, claiming that Smith's had violated New Mexico state law, and that two Smith's employees had interfered with her employment relationship. Smith's removed the case to federal court and requested that the individual employees be dismissed because they had been joined fraudulently to destroy diversity. The plaintiff then amended her complaint to add a claim under the Americans with Disabilities Act ("ADA"). Several months after suit was filed, Smith's offered to reinstate plaintiff to a position that would accommodate her asthma, but she did not accept the offer before it expired. The district court dismissed the individual defendants and granted summary judgment in Smith's favor on all claims.

The Tenth Circuit Court holds that the federal court had federal-question jurisdiction after plaintiff added her ADA claim. Therefore, dismissal of the individual defendants on the ground of fraudulent joinder was improper. Also, dismissing them on the merits was inappropriate because the reason for dismissing them was based on jurisdiction. Therefore, the individual defendants should have been dismissed without prejudice.

Turning to plaintiff's ADA claim, the Tenth Circuit Court holds that her asthma substantially limits her ability to breathe, which is a major life activity. The Court also determines that plaintiff could establish her disability by evidence of her own experience, rather than in comparison to most people's daily lives. Plaintiff's...