Perez v. Denver Fire Dep't

• Citation: 243 F.Supp.3d 1186
• Decision Date: 20 March 2017
• Docket Number: Civil Action No. 15–cv–00457–CBS
• Parties: David PEREZ, Plaintiff, v. DENVER FIRE DEPARTMENT, and City and County of Denver, Defendants.
• Court: U.S. District Court — District of Colorado

243 F.Supp.3d 1186

David PEREZ, Plaintiff,

v.DENVER FIRE DEPARTMENT, and City and County of Denver, Defendants.

Civil Action No. 15–cv–00457–CBS

United States District Court, D. Colorado.

Signed March 20, 2017

Joseph Anthony Whitcomb, Rocky Mountain Disability Law Group, Denver, CO, for Plaintiff.

John–Paul Christopher Sauer, Kristen Anne Merrick, Denver City and County Attorney's Office, Denver, CO, for Defendants.

MEMORANDUM OPINION REGARDING DEFENDANT'S FOR SUMMARY JUDGMENT and PLAINTIFF'S REQUEST FOR LEAVE TO AMEND COMPLAINT

Magistrate Judge Shaffer

This Memorandum Opinion addresses the following motions: (1) Defendant City and County of Denver's Motion for Summary Judgment (doc. # 37) and (2) Plaintiff David Perez's Request for Leave of Court to Amend Complaint (doc. # 45). Both of these motions have been fully briefed. The parties consented (doc. # 22) to the magistrate judge's jurisdiction to "conduct all further proceedings in this civil action, including trial, and to order the entry of a final judgment," pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. Accordingly, the case was referred to this court on January 26, 2016. After carefully considering the parties' briefs and attached exhibits, the entire case file, and the applicable law, this court will grant Defendant's motion for summary judgment and deny Plaintiff's motion for leave to amend his Complaint.

PROCEDURAL BACKGROUND

Mr. Perez commenced this action on March 4, 2015 with the filing of a pro se Complaint (doc. # 1) that asserted claims under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq. , and the Uniformed Services Employment and Reemployment Act of 1994 (USERRA), 38 U.S.C. §§ 4301 – 4335. Mr. Perez asserts that he had been employed by the City and County of Denver as a full-time paid firefighter since December 1, 2006, and that prior to his employment with the Denver Fire Department, he served on active duty with the United States Marine Corps for eight years. Plaintiff states that he is still serving in the Selected Marine Corps Reserve. In his Complaint, Mr. Perez contends that Defendant City and County of Denver violated ADA § 12112(d) by disclosing confidential medical information to his co-workers. See Complaint, at ¶¶ 12, 27. Plaintiff also alleged that his supervisor violated USERRA § 4311, which prohibits discrimination on the basis of military service. Id. at ¶ 32.

On January 26, 2016, this court entered an Order (doc. # 24) granting in part and denying part a Motion to Dismiss (doc. # 7) filed by Defendant City and County of Denver.¹ On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court is required to "view the allegations contained in the pro se Complaint in the light most favorable to the non-moving party." However, I observed that "Plaintiff's factual allegations [in his Complaint] are barely sufficient to assert an improper disclosure of confidential medical information."

Defendant's contention that Plaintiff voluntarily disclosed his PTSD condition during the conversation with Station 9 firefighters on August 17, 2011 is not supported by the Complaint. Plaintiff specifically alleges in the Complaint that prior to being made aware of the evaluation request he never discussed his PTSD condition with DFD or the City. Additionally, the Complaint does not allege that during the conversation Plaintiff specifically used the term "PTSD" or revealed his medical diagnosis. Furthermore, the manner in which Captain Wells learned of Plaintiff's medical condition is a question of fact not appropriate for resolution on a motion to dismiss. Plaintiff has sufficiently alleged that Defendant illegally disclosed his confidential medical information in violation of the confidentiality provision of the ADA.

See Order Regarding Defendant's Motion to Dismiss (doc. 16) at 9 (internal citations omitted). Accordingly, the court declined to dismiss Plaintiff's ADA claim.

Mr. Perez's second claim did not fair as well. Section 4311 of USERRA prohibits employment discrimination against service members based on their military service, see 38 U.S.C. § 4311(a), and provides for a hostile work environment cause of action analogous to the one authorized by Title VII. See, e.g., Otero v. N.M. Corr. Dep't , 640 F.Supp.2d 1346, 1358 (D.N.M. 2009) ; Vickers v. City of Memphis , 368 F.Supp.2d 842, 845 (W.D. Tenn. 2005) (concluding that hostile work environment claims fall under the broad interpretation of the term "benefit"). But an adverse employment action under USERRA imposes the same materiality requirement found in other civil rights statutes addressing employment discrimination. See, e.g. , Crews v. City of Mt. Vernon , 567 F.3d 860, 869 (7th Cir. 2009) ("There is no reason to understand ‘adverse employment action’ differently in the USERRA context."). This court concluded that Mr. Perez had not alleged sufficient facts to establish that Defendant discriminated against him based on his military service, and failed to provide any factual allegations to support a hostile work environment claim. Therefore, I concluded that Plaintiff had not alleged a cognizable claim for relief under USERRA.

On January 25, 2016, counsel entered an appearance on behalf of Mr. Perez. That same day, the court held a status conference with Plaintiff's counsel in attendance. The court advised that if Mr. Perez wished to file an amended complaint in light of my recently vacated December 22, 2015 Order, that pleading should be submitted by February 10, 2016. In the absence of an amended complaint, the court directed the parties to submit a proposed Fed. R. Civ. P. 16 scheduling order by February 15, 2016. Plaintiff did not file an amended complaint by the prescribed February 10, 2016 deadline.

The court held a Rule 16 scheduling conference on February 18, 2016. At that time, the court set a fact discovery deadline of June 30, 2016² and a dispositive motion deadline of August 1, 2016. The parties' proposed scheduling order did not request, and the court did not set, a new deadline for moving to amend the Complaint. On June 7, 2016, the parties filed a joint motion for a two-week extension of the discovery deadline. I granted that motion on the same day and extended the fact discovery deadline to July 14, 2016. On July 26, 2016, Defendant City and County of Denver filed its pending motion for summary judgment. On August 5, 2016, Plaintiff's counsel filed an Unopposed Motion to Withdraw (doc. # 41) stating, in part, that "Plaintiff has requested that he be permitted to represent himself pro se , and has discharged counsel." The court granted that motion on August 8, 2016.³ Mr. Perez filed his Opposition to Defendant's Motion for Summary Judgment (doc. # 44) on August 16, 2016 and a Motion to Supplement Plaintiff's Response to Defendant's Motion for Summary Judgment (doc. # 46) on August 22, 2016. Mr. Perez also filed a Declaration in Support of Opposition to Defendant's Motion for Summary Judgment (doc. # 52) on September 9, 2016.⁴ The City and County of Denver filed a Reply in Support of its Motion for Summary Judgment (doc. # 57) on September 21, 2016.

Also on August 22, 2016, Mr. Perez filed a Request for Leave of Court to Amend Complaint (doc. # 45). Mr. Perez asserted that this belated motion was prompted by "further investigation" and "additional new information" obtained since December 22, 2016. Plaintiff indicated that he wished to "add three (3) new claims to the Complaint: 1) violation of Plaintiff's Civil Rights for defamation of character; 2) violation of laws governed by the United States Department of Labor and Plaintiffs (sic) Civil Rights for desperate (sic) treatment due to assumed mental condition by Defendant for Hostile Work Environment for hazing and harassment in the work place; [and] 3) violation of the ADA for actions taken, to include a required Fit–For–Duty evaluation because Plaintiffs (sic) is a combat veteran." Mr. Perez further asserted that his proposed amended complaint would "provide additional undisputed facts referencing" the previously dismissed USERAA claim.

The City and County of Denver filed a Response to Plaintiff's Motion for Leave to Amend Complaint (doc. # 54) on September 15, 2016. Defendant argued that Plaintiff's motion was untimely given the February 10, 2016 deadline for amending the Complaint and the recently filed Motion for Summary Judgment. The City and County also noted that Mr. Perez had been represented by counsel through the discovery period.

ANALYSIS

A. Defendant's Motion for Summary Judgment

Defendant City and County of Denver has moved for summary judgment on the narrow issue of whether a Fire Department employee on October 1, 2011 improperly disclosed Plaintiff's confidential medical information in violation of § 12112(d) of the ADA.⁵ Defendant maintains that Captain Wells' statement to Plaintiff's co-workers on October 1, 2011, as well as a letter sent by the Captain on August 28, 2011, did not disclose confidential medical information. More specifically, the City and County of Denver contends that it cannot be liable for dissemination of medical information that Plaintiff voluntarily disclosed to co-workers on August 17, 2011 outside the context of a medical examination or inquiry. Defendant insists that this undisputed fact "dooms" Plaintiff's remaining claim for relief.

Mr. Perez argues, to the contrary, that he never explicitly stated that he had post-traumatic stress disorder

(PTSD) when he spoke to his co-workers on August 17, 2011, and only made statements referring to PTSD during a September 7, 2011 interview with Department officials and subsequent fitness for duty evaluation requested by the Denver Fire Department. As such, Mr. Perez contends that his confidential medical information was disclosed in violation of § 12112(d).

1. Standard of Review

"Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the [materials in...