Bristol v. Bd. of County Com'Rs of Clear Creek

• Decision Date: 26 February 2002
• Docket Number: No. 00-1053.,00-1053.
• Citation: 281 F.3d 1148
• Parties: Gary BRISTOL, Plaintiff-Appellee, v. The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CLEAR CREEK and Don Krueger, in his official capacity as the Sheriff of the County of Clear Creek, Defendants-Appellants, County Sheriffs of Colorado, Inc., Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1148

281 F.3d 1148

Gary BRISTOL, Plaintiff-Appellee, v. The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF CLEAR CREEK and Don Krueger, in his official capacity as the Sheriff of the County of Clear Creek, Defendants-Appellants County Sheriffs of Colorado, Inc., Amicus Curiae.

No. 00-1053.

United States Court of Appeals, Tenth Circuit.

February 26, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert M. Liechty, Denver, CO, for Defendants-Appellants.

Evan S. Lipstein of Law Offices of Evan S. Lipstein, Lakewood, CO, John W. Berry, Denver, CO, with him on the brief, for Plaintiff-Appellee.

Josh A. Marks and Andrew D. Ringel, Hall & Evans, L.L.C., Denver, CO, filed a brief on behalf of the Amicus Curiae.

Before EBEL and LUCERO, Circuit Judges, and VRATIL, District Judge.^*

EBEL, Circuit Judge.

This appeal involves several issues arising under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Specifically, we hold, first, that in a case tried to a jury, the court decides whether the plaintiff has identified "impairments" and "major life activities" recognized under the ADA, but that the jury decides whether the plaintiff has demonstrated by a preponderance of the evidence whether the identified impairment "substantially limits" one or more of the identified major life activities such that the plaintiff should be considered "disabled" for purposes of the ADA. Second, we hold that a position is "vacant," for purposes of considering whether an employer has a duty to transfer a disabled employee to that position, see Smith v. Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir.1999) (en banc) (hereinafter, "Midland Brake"), only if the employer knows, at the time the employee asks for a reasonable accommodation, that the job opening exists or will exist in the fairly immediate future. A position is not vacant if, as here, the employer did not know at the time the employee asks for a reasonable accommodation that the position would become vacant in the fairly immediate future, even if it did in fact open up a reasonable time after the employee's request had been made. Third, we hold that the trial court was correct in ruling that Bristol could establish discrimination by showing that the County failed reasonably to accommodate him by reassigning him to a vacant position. Bristol is not required to establish separate proof of discriminatory intent. Fourth, we hold that the district court erred by not allowing the jury to decide whether both the County and the Sheriff are properly treated as Bristol's employers for purposes of this lawsuit.

BACKGROUND

A. Gary Bristol

Gary Bristol worked as a jailer for the Sheriff of Clear Creek County, Don Krueger, from February 1990 to March 1996. On March 23, 1996, Bristol suffered chest pain after he and other officers had to restrain forcibly a combative prisoner. Bristol was taken by ambulance from Georgetown, Colorado — where he was working — to St. Anthony's Hospital in Denver. Hospital employees treated and tested Bristol's heart condition¹ for two to three hours, but he was not hospitalized.

Bristol's doctors decided to treat his worsened coronary condition with medicine, rather than surgery. Dr. Jerry Sam Miklin, Bristol's cardiologist, wrote to the Sheriff's Office stating that Bristol's weakened heart required him to receive light-duty assignments. The Sheriff complied by assigning Bristol to work first in the evidence vault for a week, and then on light-duty in the jail, doing paperwork, monitoring cameras, and opening cell doors. After Bristol took a stress-test in early April 1996, Dr. Miklin again wrote the Sheriff's office, explaining that Bristol's heart condition was "indefinite" and that he should not have contact with inmates or any other job that might lead to severe or strenuous activity. By "indefinite," Dr. Miklin meant "permanent, cardiac-related problems." Specifically, Dr. Miklin prohibited Bristol from lifting more than fifty pounds on a continuous basis, being exposed to cold weather (except infrequently), and being in situations that would cause emotional or physical stress.

Bristol continued doing light-duty work in the jail from mid-April 1996 to May 20, 1996. On May 20, 1996, however, Bristol was discharged. The termination notice stated: "Upon review of your doctor's orders it is apparent that you can no longer perform the essential functions of a Confinement Officer.... I can not accommodate this restriction on an indefinite schedule.... You have the right to appeal this decision as outlined in the Clear Creek County Personnel Policy Manual adopted on April 5, 1994."

Bristol appealed his termination to the County Personnel Review Board ("PRB"). The hearing took place on July 11, 1996, and the PRB upheld Bristol's dismissal. The PRB encouraged Bristol to apply for available County positions and stated that he might be given a hiring preference if he was qualified for a job opening.

There were at least two job openings within the County at the time of the PRB hearing in mid-July 1996: equipment operator in the road and bridge department, and appraiser-trainee. Bristol interviewed for both jobs. Shortly thereafter, however, Dr. Miklin told Bristol that he could not work as an equipment operator because that job could involve shoveling, lifting heavy objects, or clearing obstructions off the blades of the equipment.

The County Assessor, Diane Settle, was responsible for hiring the appraiser-trainee. The appraiser-trainee was one of five positions in the Assessor's office. The job description for appraiser-trainee states that the person holding that position is responsible for: (i) assessing the value of County property by physically inspecting it and by reviewing market data on similar properties; (ii) researching and keeping current the Assessor's computer database; and (iii) responding to questions and complaints in person, by phone, and through correspondence. The job description also lists "Required Experience," which is described as: "[A] level of knowledge and ability to handle all routine tasks with considerable assistance in the full range of job duties. Such a level is generally acquired through up to two (2) years experience in a related field." The required education is described as a high school diploma or equivalent, and the required skills are described as (i) proficient in communications and in public relations and (ii) moderate skill in typing, the use of PCs, ten-key calculators, and copiers.

Following standard procedure within the County, Buckley reviewed Bristol's resume and forwarded it and the other applications to Settle. She interviewed nine applicants for the job, including Bristol. Her interview with Bristol lasted ten to fifteen minutes, about as long as every other interview. Settle believed Bristol was not interested in the job because his wife had scheduled the interview and because he gave "short, minimal" answers to her interview questions. He seemed like he was just "going through the motions." Settle testified that she hired a man with three years of experience in an assessor's office. According to Buckley, Bristol was not given "preference" when he applied for this job.

After he interviewed for the position of appraiser-trainee, the County did not inform Bristol of any other job openings from 1996 to 1998-until he filed this lawsuit in 1998, at which time the County told him about a bookkeeping position, but before he could respond that job was filled. Gail Buckley was not instructed to keep Bristol advised about other job openings.

In October or November of 1996, the job of dispatcher II came open in the Sheriff's Office. The Sheriff's Office had three types of dispatchers: dispatcher I (starting dispatcher with no experience); dispatcher II (experienced dispatcher); and dispatcher III (supervisor). The dispatcher II job required two years previous experience as a dispatcher and skills to use a dispatcher's equipment, including specialized software, and to prioritize incoming calls by importance. Bristol had received some training as a dispatcher when he was jailer at the Sheriff's Office, when he had relieved other dispatchers for short periods of time. Nevertheless, the Sheriff did not contact Bristol when the dispatcher II job came open because, as he testified, "it had been so long since we'd heard from him that I had forgotten about Mr. Bristol."

After being fired by the County, Bristol worked nights for about a year at a part-time computer job he found through a temporary agency. He also worked for two months transporting prisoners within Colorado for a private company, but quit that job because he was dissatisfied with how the company sought to ensure the safety of its workers. At the time of trial, Bristol was working part-time for a rental car company driving rental cars to their outlets. He applied, but was not hired, for positions with the Cities of Lakewood and Aurora and the Colorado State Patrol, among others. He also received disability benefits from the County.

B. The Relationship between the Sheriff's Office and the County

In Colorado, counties and the offices of county commissioner and county sheriff are created under separate sections of the Colorado Constitution. See Colo. Const. art. XIV, § 1 (county), § 6 (county commissioner), and § 8 (county sheriff). Colorado statutes define the powers and duties of counties, county commissioners, and county sheriffs. See generally Colo.Rev. Stat. tit. 30. Sheriffs have the power to appoint undersheriffs and deputies, as well as fix their salaries, subject to the approval of the board of county commissioners. See Colo.Rev.Stat. § 30-2-106(1).

Clear Creek County is governed by a Board made up of three county commissioners. The Board establishes the budget for the Sheriff's Office. Employees who work in the Sheriff's Office are paid out of this budget. The Sheriff's Office uses County services for...