Hope everyone had a great Easter weekend. The blog of the week is actually a two-for-one. We will discuss an update to a previous blog entry, here. After that, we will discuss a decision from a Colorado appellate court clarifying the rules with respect to service animals, Stalder v. Colorado Mesa University, here.

First off, we turn to the Fifth Circuit case in Lartigue v. Northside Independent School District. It turns out the Fifth Circuit withdrew that opinion and substituted another. Not entirely clear why they did that. They could have done that for a variety of reasons. The dissent is basically the same, so we will not focus on that. As usual, the blog entry is divided into categories and they are: new additions from the Lartigue majority expanding upon the withdrawn opinion; Stalder v. Colorado Mesa University facts; Stalder’s discussion of the law pertaining to service animals; Stalder’s discussion of the application of the law to the facts so as to necessitate reversing the grant of summary judgment; Stalder’s discussion of why case law talking about further documentation requests being permissible if there are legitimate suspicions is not good law; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

New Additions from the Lartigue Majority Expanding upon the Withdrawn Opinion

1. Majority goes into further detail as to why collateral estoppel doesn’t apply. In essence, relitigation of an issue is not precluded unless the facts as well as the legal standard used to assess them are the same in both proceedings, which isn’t the case here. It is the court that has to independently analyze whether the legal standards are significantly different. The yardstick to measure compliance with IDEA is the provision of a free appropriate public education through an IEP plan. On the other hand, the yardstick for an ADA claim is not adherence to an IEP plan, but is whether the public entity failed to make reasonable accommodations, specifically accommodations giving a student with a disability equal access as her nondisabled peers.
2. IDEA and ADA not only have different legal standards but require different accommodations and different facts are critical for each, which is why the IDEA hearing officer did not address a variety of facts critical to the plaintiff’s ADA claims.
3. ADA has an effective communication rule for title II and for title III, which is entirely absent in the IDEA. We have discussed the effective communication rules numerous times in the blog, such as here.
4. Standalone ADA claims are possible even where a free appropriate public education issue is also involved.
5. The court specifically declined to decide whether Cummings, which we discussed here, prohibition on emotional distress damages applies to title II of the ADA. The court noted that title II of the ADA is not spending clause legislation. The court did say that the district court may consider the issue if need be.

II

Stalder v. Colorado Mesa University Facts

1. Plaintiff attended Colorado Mesa University, a public university, from the fall of 2019 to the summer of 2022.
2. Plaintiff has posttraumatic stress disorder, anxiety, and depression.
3. Plaintiff’s parents purchased a dog because they knew he wanted the dog for mental health reasons. At the time of the purchase, plaintiff was told that the dog was an emotional support animal.
4. Plaintiff personally trained the dog and by January 2021, the dog was trained as a service animal. Plaintiff testified that he watched online videos to learn how to train the dog. He also testified that the dog is trained to remove him from situations causing him to have PTSD, anxiety, or depressional episodes. The dog also has been trained to provide pressure therapy and remind him when to take his medications.
5. Things started going sideways when the plaintiff entered the gym at Colorado Mesa University with the dog. He told Colorado Mesa University personnel that the dog was an emotional support animal, but later testified at his deposition that he was initially confused about the terminology distinguishing between emotional support animals and service animals.
6. Subsequently, the Director of Advocacy and Health at Colorado Mesa University emailed the six plaintiff the University’s service animal policy and informed him that only service animals were allowed in campus buildings and that his dog would not allowed in any campus buildings including the recreation center. He also explained the difference between therapy and service animals. He said that the plaintiff told him that the dog was not trained as a service dog.
7. The very next day, plaintiff went to USAservicedogregistration.com (I am in no way endorsing this site), and registered the dog as a service animal paying $200 for a service animal certification and a service dog identification badge.
8. On February 12, plaintiff went to the gym and said that his dog was a service animal and presented the dog’s badge that he got from the Internet. The gym staff let the plaintiff and his dog inside. That led to a conversation between Colorado Mesa University personnel whereby the difference between a service animal and emotional support animal was discussed as well as the persuasive nature, if any, of the registration that plaintiff did on the Internet. The conclusion was that plaintiff’s dog was not a service dog.
9. Plaintiff met with the Director of Campus Safety and Student Conduct whereby he presented the dog’s badge and service animal certification. He informed the Director of Campus Safety that his dog was trained to warn him to remind him when he takes medication and that he was continuously training the dog.
10. The Director of Advocacy and Health then requested more information and that plaintiff grant him permission to talk to his medical provider. He emailed the plaintiff saying that he needed to confirm with his healthcare providers that plaintiff has a disability and attached the consent form. The response from the plaintiff was that his dog was being kept off-campus in violation of the ADA and that he was seeking legal advice. He also said that the dog provided him with a service in direct support of his disability, which was heavily documented.
11. Plaintiff then provided a note that he obtained online from a California social worker prescribing the plaintiff to have a psychiatric service dog.
12. Plaintiff also explained that at the time he claimed the dog was an emotional support animal he did not know what a service animal was, so it would have been fraudulent for him to claim that the dog was a service animal when he did not know at the time that it actually was.
13. The Director of Advocacy and Health then told plaintiff that he could not bring his dog on campus unless he provided documentation that the dog was a trained service animal. The author later told the plaintiff that the dog could only come on campus if the plaintiff took the dog to an obedience class and provided documentation of the dog’s attendance. At that point, plaintiff responded that his rights under the ADA were being violated, that he would get legal representation, and he was cutting off further discussion. He proceeded to sue under both the ADA and the Colorado version of the ADA as well as intentional infliction of emotional distress claims. The district court granted summary judgment on all claims and the plaintiff appealed. For the reasons discussed below, the appellate court affirms summary judgment on the intentional infliction of emotional distress but reverses as to the other claims.

II

Stalder’s Discussion of the Law Pertaining to Service Animals

1. Under the Colorado version of the ADA, a qualified individual with a disability has the right to be accompanied by a service animal individually trained for that individual in any place of public accommodation, including educational institutions.
2. The Colorado version of the ADA defines service animal by referencing the implementing regulations of the ADA.
3. The ADA regulations, 28 C.F.R. §35.104, provides that a service animal means any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Further, that work or task must be directly related to the individual’s disability and providing emotional support does not constitute work or tasks.
4. The Colorado version of the ADA is substantially equivalent to the ADA and therefore, should be interpreted consistently with the ADA.
5. It is up to the plaintiff to point to evidence of individual training to set a service animal apart from an ordinary pet. However, that requirement is not taxing and there are no federally-mandated animal training standards. There is no requirement as to the amount or type of training that a service animal must undergo, and there is no requirement to the amount or type of work a service animal must provide for the benefit of the person with a disability.
6. A dog’s owner can be its trainer.
7. It is not necessary for plaintiff to show that the dog was trained by a quote certified trainer.” In fact, a dog may be trained at home.
8. In a footnote, the court noted that service dogs in training are not covered by the ADA at all but are rather a matter for state law.
9. The bar for demonstrating a genuine issue of fact regarding a dog’s status as a service animal is not a high one.

III

Stalder’s Discussion of the Application of the Law to the Facts So as to Necessitate Reversing the Grant of Summary Judgment

1. Plaintiff testified in his deposition that he adopted the dog at the end of November 2020 and trained him as a service dog by January 2021.
2. He also testified that he watched videos online to learn how to train the dog.
3. He testified that the dog is trained to remove him from situations causing him to have PTSD, anxiety, or depression or episodes and even gave examples of how the dog does that during the course of his deposition testimony. In short, he discussed how the dog engages in recognition and response to various situations.
4. An individual may self-train a service animal under the ADA, and a person is not required to present any documentary evidence showing the amount or type of training that the animal undergoes.
5. The deposition testimony was not conclusory. Rather, plaintiff asserted that he had trained the dog and explained what tasks the dog could perform. Those tasks make it clear that the dog goes far beyond providing the plaintiff with emotional support, well-being, comfort, or companionship.
6. Plaintiff gave a plausible explanation as to why he originally said that the animal was not a service animal. At that time, he had a letter saying that the dog was an emotional support animal, which to plaintiff meant that the dog was a service animal in training.
7. Plaintiff stated that after adopting the dog, he trained the dog to become a service animal.
8. He testified that before he registered the dog as a service animal on the Internet, he was confused about the service animal and emotional support animal terminology.
9. In a footnote, the court noted that the issue at trial will be whether the dog was a service animal in February 2021 and not at some later date.
10. In another footnote, the court noted that summary judgment is not a substitute for trial. In other words, the fact that a jury might ultimately choose not to credit certain explanation cannot alter the fact that there are genuine issues of material facts to be resolved by the jury.

IV

Stalder’s Discussion of Why Case Law Talking about Further Documentation Request Being Permissible If There Are Legitimate Suspicions Is Not Good Law

1. The legitimate suspicions doctrine is inconsistent with the ADA regulations and the district court erred by relying on it.
2. The ADA regulations, 28 C.F.R. §35.136(f), specifically provide that a public entity cannot ask about the nature or extent of a person’s disability, but may make two inquiries in order to determine whether an animal qualifies as a service animal. Those two inquiries are: 1) whether the animal is required because of a disability; and 2) what work or task the animal has been trained to perform. A public entity cannot require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. In a footnote, the court noted that Colorado Mesa University did not attack the validity of the regulation itself.
3. The regulation permits public entities to make only two specific inquiries. The regulation became effective on March 15, 2011.
4. In a footnote, the court notes that identical regulations for service animals exist for places of public accommodation per Title III.
5. The cases cited by the district court existed prior to the date of the regulations containing the two inquiry approach. The one case after the date of those regulations mistakenly relied on cases prior to the regulations. So, no legal authority exists for the legitimate suspicion doctrine.

V

Thoughts/Takeaways

1. With respect to Lartigue, the best approach is to read our prior blog entry discussing the now withdrawn opinion and then also read the new opinion. There are two points from the new opinion worth repeating here: 1) relitigation of an issue is not precluded unless the facts as well as the legal standard (both must be present), used to assess them are the same in both proceedings; and 2) standalone ADA claims are possible even where a free appropriate public education issue is also involved. The dissent goes to the same place both times. With respect to Stalder see the below thoughts and takeaways.
2. Stalder’s impression that an emotional support animal is a service dog in training is not correct. An emotional support animal may be in training to be a service animal but it might not be.
3. I have seen persons with disabilities use the nomenclature that their dog is an emotional support animal. However, upon further discussion, it is clear that the animal is actually a service animal. On the plaintiff side, do not assume that the person with a disability knows the difference between an emotional support animal and a service animal. On the defense side, the two inquiries exist for a reason. Make sure those inquiries are made. I am of the view that it may even be negligence in the event of injuries caused by a dog, for various kinds of businesses, such as those operating restaurants, to not make those two inquiries.
4. Legitimate suspicions is not a thing. Whether an animal is a service animal entirely depends upon the two inquiries and getting further documentation along the lines of Title I of the ADA or along the lines of the Fair Housing Act, is simply not how it works. A person with a disability is not required to present any documentary evidence showing the amount or type of training the animal had.
5. Knowledgeable legal counsel who understands how these issues work in different ways across the Titles I-III of the ADA and the Fair Housing Act, is very important.
6. In full disclosure, the United States District Court in New Mexico, here, did say that my testimony would have been allowed with respect to whether a dog involved in that case was actually a service animal.
7. Internet registration is not a thing that affects any of this. Registering animals by way of the Internet is definitely an issue in the Fair Housing Act arena as the latest HUD circular, here, makes clear.
8. Emotional support animals are a Fair Housing Act issue and are not protected by the ADA or for that matter the Air Carrier Access Act.
9. Training of staff on the two inquiry approach is super important or else things, as this case illustrates, can go terribly wrong.
10. Open question as to whether emotional distress damages are available under title II of the ADA.
11. Many states have disability discrimination laws tracking the ADA, but not all. For example, Alabama does not have any discrimination laws at the state level and Georgia only has a very limited one.
12. States can vary in how closely they track the ADA regulations when it comes to how they deal with service animals.
13. Service animals in training are entirely a creature of state law and the specific statutes can vary considerably.
14. I am not licensed to practice law in Colorado.
15. Individuals can certainly train their dogs to be service animals. I did that with my miniature poodle.
16. A service animal can be an animal that works only in the house and not outside. Mine certainly is. I have been told that for Deaf and deaf individuals, that is not unusual at all.
17. Plaintiffs have the burden to point to evidence of individual training, but that is not a high burden to meet. As the court noted: 1) no federally-mandated animal training standards exist; 2) no requirement at the amount or type of training that a service animal must undergo exists; and 3) no requirement to the amount or type of work a service animal provides for the benefit of the person with the disability exists.
18. Courts vary considerably on whether summary judgment is a screening tool for all but the best cases or whether summary judgment does not act as a substitute for trial.
19. While Stalder is a Colorado case, it’s close reliance on the ADA regulations mean practitioners all over the country should take notice. It is an excellent roadmap for how to deal with the situations arising in this case, which happen frequently.
20. Animals are not allowed everywhere on the college campus, here, but that doesn’t circumvent the two inquiry paradigm.