Brown v. City of Tucson

• Decision Date: 30 July 2003
• Docket Number: No. 01-16938.,01-16938.
• Citation: 336 F.3d 1181
• Parties: Brenda BROWN, Plaintiff-Appellant, v. CITY OF TUCSON, a municipal corporation of the State of Arizona, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1181

336 F.3d 1181

Brenda BROWN, Plaintiff-Appellant, v. CITY OF TUCSON, a municipal corporation of the State of Arizona, Defendant-Appellee.

No. 01-16938.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2002.

Filed July 30, 2003.

Jenne S. Forbes, Tucson, AZ, argued the case and filed the briefs for the appellant.

Lyle D. Aldridge, Gabroy Rollman, & Bosse, Tucson, AZ, argued the case and filed a brief for the appellee.

Susan R. Oxford, Washington, DC, argued for amicus curiae Equal Employment Opportunity Commission. Robert J. Gregory filed the brief. Nicholas M. Inzeo, Philip B. Sklover, and Lorraine C. Davis were on the brief.

Ellen Sue Katz, Phoenix, AZ, filed a brief for amicus curiae Arizona Attorney General. Janet Napolitano, Attorney General of Arizona, was on the brief.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CV-99-00473-RCC.

Before: STAPLETON,^* O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether a city police department violated a detective's rights under the Americans with Disabilities Act.

I

Brenda Brown was a detective in the Tucson Police Department.¹ She was hired in May of 1982 and earned a promotion to detective in 1988. In May of 1997, Brown became severely depressed and attempted suicide, leading to her hospitalization and several weeks of medical leave soon thereafter. When Brown returned to work in July of 1997, the Department's consulting clinical psychologist recommended that Brown not be required to work "call out" duty,² as it would disrupt sleep habits and, in so doing, contribute to her depression. In addition, Brown's personal physician noted that she had been prescribed certain medications designed to help her sleep that might impair her ability to drive at night.

A

Brown was assigned to Team Four of the Department's Neighborhood Crimes Unit, where her immediate supervisor was Sgt. Robert Holliday. Brown asserts that both she and Holliday's immediate supervisor, Lt. William Richards, informed Holliday that she was to be excused from nighttime call-out duty.

Like Brown, Holliday was new to Team Four, having been transferred there for the purposes of improving the unit's performance. Over the course of the two months following Brown's return from medical leave, Holliday made a series of inquiries about Brown's inability to perform call-out duty in what he characterized as an effort to "look[] for ways for her to be a contributing part of the Unit." Brown took a different view of her supervisor's actions, alleging that these efforts included (1) trying to obtain information from Brown about her disability; (2) attempting to get Brown to perform call-out duty; (3) calling Brown into his office to explain concerns Holliday had about her inability to do nighttime call-out and to ask why she could not work night shifts; (4) telling Brown to stop taking her medications for a week so she could then perform call-out duty and further telling her that if she did not do so she would be transferred, demoted, or required to take medical retirement; (5) talking on the phone with Richards about her; (6) telling her that she was "sloughing off" and "goofing off"; (7) informing her that other members of the unit were complaining about her early departures and long lunches; (8) ordering her to sign in each day if there were any deviation from her 8:00 a.m. start time; and (9) making unauthorized inquiries of the Department's Behavioral Sciences Unit concerning the nature of Brown's disability.

In response to what she perceived as Holliday's improper behavior, Brown contacted Department's Internal Affairs Division ("IAD") and was informed that she could deal with her problem through the chain of command or by filing a formal complaint with IAD, the City of Tucson, or the Office of the Arizona Attorney General. When the first option — taking her complaint up the chain of command — proved unavailing, Brown filed a complaint with IAD on September 25, 1997. This complaint was followed by an investigation culminating in a personnel report, dated October 23, 1997, that found that Holliday "asked Det. Brown if she could vary her medications for call-out ... and ... that Sgt. Holliday talked to Sgt. Easton of the Behavioral Sciences Unit to obtain information about Det. Brown and her illness." The report further found that there was "no malice and forethought conjoined with these actions or statements ... and there is every reason to believe that [Holliday's] intent was honorable." Nevertheless, the report concluded that "the residual effect [of Holliday's actions] was less than positive and in many regards debilitating and counterproductive as viewed by [Brown]." Holliday therefore was required to undergo training and to "educate[] himself on the proper ways to handle an employee who has either a medical or a disability issue."³

B

At roughly the same time that the above-described events were taking place, Brown was working with Holliday on a case involving allegations of an assault committed by a doctor against a nurse at a local hospital ("the assault case"). Sometime in early September 1997, Brown issued a citation to the accused doctor that listed September 22, 1997, as the date upon which he was required to appear in court.⁴ On October 1, 1997, however, a clerk was emptying the Unit's paperwork⁵ from the basket on her desk — something she does several times a day — when she came upon the citation in the assault case and noted that the court date written on it had already passed. After making some initial inquiries that confirmed that the case was still open, the clerk informed Holliday who on that same day was being interviewed by IAD in connection with Brown's complaint against him. Holliday sought guidance on how to proceed from Richards, his supervisor, and was instructed to preserve the integrity of the assault case investigation.

On that same day, Holliday contacted Nancy Coomer, the attorney of record for the defendant in the case and learned that she was no longer representing the defendant, but that the case had been referred to a second attorney, Michael Piccaretta. Upon contacting Piccaretta, Holliday learned that Piccaretta and his client had indeed appeared on September 22, as called for on the citation, but were told that the court had no record of any citation being filed. On the next day, Brown was out of the office,⁶ so Holliday himself went to Piccaretta's office to issue a new citation. Holliday next decided to check Brown's case status report, a chronological log of activities that detectives are expected to keep as an aid to completing the supplemental reports that follow upon the issuance of a citation. Brown's case status report for the assault case showed a citation date of October 1, a date that Holliday knew to be incorrect because he was present when Brown issued the original citation in September.

In light of the erroneous case status report and the manner in which the citation had been placed among current documentation in the clerk's "in" basket, Holliday suspected that something more than mere citation error was afoot. He asked the clerk who discovered the citation to prepare a memo detailing her actions and, rather than confront Brown, decided to wait and see how she dealt with the discrepancy in her supplementary report, which had been due on September 20.⁷ Brown's supplementary report, filed on October 21, states that, on October 7, the defendant and his lawyer⁸ "arrived at the east-side substation. Ms. Coomer spoke to both Sgt. Holiday [sic] and I[sic]. She was trying to convince us not to cite her client. Sgt. Holiday explained to her that this was not appropriate, and that she could take her case before the court. Mr. Hammond was issued a citation and field released."

Again, Holliday knew this information to be inaccurate and he once again sought guidance from his superiors — Richards and Capt. John Leavitt — who determined that Holliday should be dissociated from any further investigation regarding Brown's handling of the assault case because of concerns that any involvement would expose him to charges of retaliation. Richards and Leavitt decided to refer the matter to IAD.

Later that month, Holliday was replaced as head of Team Four by Sgt. Robert Garcia. Garcia's treatment of her, Brown contends, was similar to Holliday's.⁹ Specifically while Garcia was her supervisor, Brown alleges that (1) she was informed by co-workers that an arrangement had been made so that Brown would do all the daytime call-out work; (2) when she asked Garcia about the "arrangement," he confirmed its existence and justified it on the grounds that Brown could not do nighttime call-out, but then retracted the statement, saying only that he did not know why Brown had not been informed of the arrangement; and (3) she met with Garcia and Richards on December 3 about the call-out issue and requested a transfer, only to be told that her options were limited to working in the fraud unit (where her ex-husband was employed), being demoted to uniform, or quitting.

C

Meanwhile, Brown remained unaware of the investigation into her handling of the assault case. Eventually, Garcia sought an explanation from her in a memo dated December 9, 1997. Garcia's memo noted the discrepancies — i.e., the three different dates for the citation: the date of the original citation in September, the date on Brown's case status sheet (October 1, 1997), and the date in her supplemental report (October 7, 1997) — and asked for an explanation. In her response, Brown claimed that she had mistakenly written a court date of September 22, 1997, instead of October 22, 1997, on the original citation. She further contended that on October 1, 1997, she had spoken with the defendant's attorney and then with Holliday before issuing the citation...