Davoll v. Web

Decision Date25 October 1999
Docket NumberNo. 97-1381,97-1431,Nos. 97-1403,N,97-1381,s. 97-1403
Parties(10th Cir. 1999) JACK L. DAVOLL; DEBORAH A. CLAIR; PAUL L. ESCOBEDO, Plaintiffs-Appellants, v. WELLINGTON WEBB, in his capacity as the Mayor of the City and County of Denver; THE CITY AND COUNTY OF DENVER; DAVID L. MICHAUD, in his capacity as the Chief of the Denver Police Department; ELIZABETH H. MCCANN, in her capacity as the Manager of Safety for the City and County of Denver; THE CIVIL SERVICE COMMISSION, for the City and County of Denver, Defendants-Appellees. JACK L. DAVOLL, DEBORAH A. CLAIR, PAUL L. ESCOBEDO, Plaintiffs-Appellees, v. WELLINGTON WEBB, in his capacity as the Mayor of the City and County of Denver; DAVID L. MICHAUD, in his capacity as the Chief of the Denver Police Department; ELIZABETH H. MCCANN, in her capacity as the Manager of Safety for the City and County of Denver; THE CIVIL SERVICE COMMISSION, for the City and County of Denver, Defendants, and THE CITY AND COUNTY OF DENVER, Defendants-Appellants. UNITED STATES OF AMERICA, Plaintiff-Appellee v. DENVER POLICE DEPARTMENT; THE CITY AND COUNTY OF DENVER, Defendants-Appellants. o. 97-1406,
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from the United States District Court for the District of Colorado (D.C. Nos. 93-K-2263 and 96-K-370) [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] David C. Feola, of King Minning Clexton & Feola, LLC, Denver, Colorado (Law Office of Marilee E. Langhoff, Littleton, Colorado, with him on the brief), for Plaintiffs-Appellants/Cross-Appellees.

Sybil Ruth Kisken, Assistant City Attorney (Daniel E. Muse, City Attorney, J. Wallace Wortham, Jr., Asst. City Attorney Supervisor, Ashley Rea Kilroy, Asst. City Attorney, and Grace Fell Regan, Asst. City Attorney, with her on the briefs), of Denver, Colorado, for Defendants-Appellees/Cross-Appellants.

Seth M. Galanter, Attorney, Department of Justice (Jessica Dunsay Silver, Attorney, Department of Justice, with him on the briefs), Washington, D.C., for Plaintiff-Appellee, United States of America.

Before SEYMOUR, Chief Judge, BRORBY and HENRY, Circuit Judges.

SEYMOUR, Chief Judge.

Former Denver police officers Jack Davoll, Deborah Clair, and Paul Escobedo sued the City and County of Denver, as well as Mayor Wellington Webb, Police Chief David L. Michaud, and Manager of Safety Elizabeth H. McCann, in their official capacities, for violating the officers' rights under Title I and Title II of the Americans with Disabilities Act (ADA), 104 Stat. 328, 42 U.S.C. 12112, 12132, and the Equal Protection Clause of the Fourteenth Amendment. About a year and a half later, the United States filed a two-part complaint against the City and County of Denver, alleging a violation of Title II of the ADA on behalf of Jack Davoll, and a pattern and practice of discrimination under Title I of the of ADA.

The district court granted Denver's motion for summary judgment on the officers' equal protection claim, but denied summary judgment based on the officers' failure to meet the exhaustion requirements of Title I of the ADA. The Court expressly declined to decide whether the officers had properly exhausted their claims under Title I, and instead treated their claims as actions pursuant to Title II, which contains no exhaustion requirement. The Court consolidated the United States' action on behalf of Jack Davoll and the liability phase of the United States' pattern and practice claim with the officers' ADA claims. Prior to trial, the district court granted summary judgment in favor of the United States on the liability phase of its pattern and practice suit. The remaining ADA claims were tried to a jury, which found in favor of all three officers and awarded compensatory damages totaling $800,000. The district court also awarded equitable relief. After the trial, the court certified for immediate appeal its summary judgment order in favor of the United States on the liability phase of the pattern and practice suit.

Denver appeals from the trial verdict, contesting jury instructions, sufficiency of the evidence, evidentiary and discovery rulings, and the remedies awarded. Denver also contests the grant of summary judgment to the United States on its pattern and practice claims. The officers (hereinafter plaintiffs) cross-appeal, contending the district court erred in denying their motion for class certification, by granting summary judgment for Denver on their equal protection claim, and by limiting their front pay award to two years from the judgment. We consolidated the appeals and we now affirm in part, and reverse and remand in part.


Mr. Davoll, Ms. Clair, and Mr. Escobedo are all former Denver police officers who were injured in the line of duty and forced to retire due to Denver's policy forbidding disabled police officers from transferring into other vacant positions in the city government. We discuss Denver's policies on reassignment as well as each plaintiff in turn.1

A. Denver's Classified and Career Service Systems

The City and County of Denver, which has an overall budget of $1.5 billion, employs approximately 12,000 people. Most of these employees are enrolled in one of two personnel systems: the Classified Service, which is composed of police officers and firefighters, or the Career Service, which contains almost all other city employees. Denver pays the salaries, insurance, and other benefits of the employees in both systems. Evidence at trial revealed that although a unified system would be less costly and reduce duplication of efforts, the division remains primarily because of territorialism and turf wars. Denver prohibits the reassignment of employees in the Classified Service to the Career Service and vice-versa, although both systems purport to be merit based.

The Career Service has approximately 8,000 full-time and 1,500 temporary positions. Each year, it seeks to fill approximately 2,200 vacancies, 1,500 of which are for full-time employment. The Career Service system was set up by a charter which the voters of Denver approved. Its hiring rules provide that candidates must submit an application and meet the minimum qualifications for a vacant position. Candidates that do so are then tested. The Career Service Authority generates an eligibility list as a result of this screening. The hiring agency interviews those at the top of the list, although it does not know the candidates' actual scores or rankings. The agency may hire anyone on this list.

The hiring agency also may hire any one of a number of people not on the eligibility list. For example, an employee within the Career Service who meets the minimum qualifications may request an interview from the agency directly without testing for the position. If the request is granted, that person would be placed on a transfer list and could be hired. Moreover, if the manager hiring for the vacancy would like a particular Career Service employee to fill the vacancy and the employee agrees, the manager could make the transfer without ever referencing the lists of applicants. There is also a list for those Career Services employees who meet the qualifications and wish to be promoted to the vacant position. In this way, Career Service employees bypass the testing procedures for a vacancy within the Career Service. Classified Service employees are not permitted to transfer into the Career Service, and must compete with all non-City employees for any vacancies within the Career Service personnel system.

The Classified Service employs over 1,400 police officers. In order to become a police officer, a candidate must pass a written test, a physical abilities test, a medical test, a polygraph test, a psychological examination, and a background check, and must have an oral interview. Police officers that are separated under honorable circumstances may be reemployed without competing with the general applicant pool.

According to the city, all police officers must be able to shoot a gun and make a forcible arrest. If a police officer is injured in the line of duty so that he cannot perform those required functions, the police department will retain the officer as long as his condition is improving. Once a doctor determines that the injured officer has reached "maximum medical improvement," the officer has 365 days to recover enough to perform the required functions. If he cannot shoot a gun or make a forcible arrest within that time frame, he must retire. In the interim period, the police department assigns injured officers to light duty work that does not involve shooting a gun or making forcible arrests. Approximately four police officers a year retire due to occupational disabilities.

Not all positions within the Denver Police Department (DPD) require the ability to shoot a gun or effect a forcible arrest. The DPD has been actively engaged in a process of "civilianization" whereby positions that were once performed by emergency service officers, who are by definition Classified Service employees, are now performed by members of the Career Service. The civilianized positions entail the same duties as before but do not require firing a weapon or making forcible arrests. Positions such as emergency service dispatcher, criminal justice technician, and victim advocate have been civilianized. There are approximately 200 Career Service employees in the DPD, and between twenty-four and thirty-six Career Service vacancies a year within the DPD. Injured police officers are not reassigned to these positions because these jobs are now considered a part of the Career, as opposed to Classified, Service.

At trial, Denver asserted that permitting reassignment of injured police officers to Career Service positions would hurt employee morale. Denver never...

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