U.S. v. City and County of Denver

• Decision Date: 10 October 1996
• Docket Number: Civil Action No. 96-K-370.
• Citation: 943 F.Supp. 1304
• Parties: UNITED STATES of America, Plaintiff, v. The CITY AND COUNTY OF DENVER; The Denver Police Department; and the Civil Service Commission for the City and County of Denver, Defendants.
• Court: Colorado Supreme Court

943 F.Supp. 1304

UNITED STATES of America, Plaintiff, v. The CITY AND COUNTY OF DENVER; The Denver Police Department; and the Civil Service Commission for the City and County of Denver, Defendants.

Civil Action No. 96-K-370.

United States District Court, District of Colorado.

October 10, 1996.

Henry L. Solano, U.S. Attorney, District of Colorado, Denver, CO, Joan A. Magagna, Eugenia Esch, Sheila M. Foran, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, Washington, DC, for plaintiff.

J. Wallace Wortham, Jr., Assistant City Attorney, Denver, CO, for defendants.

MEMORANDUM OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

KANE, Senior District Judge.

This is a case of first impression in this circuit concerning the burden of proof in a pattern or practice suit under the Americans with Disabilities Act of 1990, ("ADA"), 42 U.S.C. § 12101 et seq. I hold the burden is the same as in a "pattern or practice" suit brought by the United States in a case under Title VII of the Civil Rights of Act of 1964, 42 U.S.C. § 2000e et seq.

On February 15, 1996, the United States filed the subject lawsuit "to enforce the provisions of titles I and II of the Americans with Disabilities Act of 1990, ("ADA"), 42 U.S.C. § 12111, et seq., and 42 U.S.C. § 12131, et seq., and the implementing regulations, 29 C.F.R. 12133 Part 1630 and 28 C.F.R. Part 35." (Compl. ¶ 1.)

The complaint describes the employment of Jack L. Davoll with the Denver Police Department, his injuries, his being placed on "limited duty," and his termination in April 1993 with the direction to apply for disability retirement. (Id. ¶¶ 10-14.) It alleges further that Davoll is a "qualified individual with a disability" as defined in the ADA, (id. ¶ 16), and that he and "other qualified individuals with disabilities" who have been employed by Defendants as police officers and who have become disabled "have similarly been denied reassignment to available positions for which they are qualified with the Police Department or within the City of Denver," (id. ¶ 17).

The United States asserts Defendants "have pursued and continue to pursue policies and practices that discriminate in employment on the basis of disability in violation of Section 102 of title 1 of the ADA, 42 U.S.C. § 12112 ... and Section 202 of title II of the ADA, 42 U.S.C. § 12132...." (Id. ¶ 18.) It maintains such "acts, omissions, policies and practices of [Defendants] constitute a pattern or practice of resistance to the full enjoyment by persons with disabilities of their rights to equal employment opportunities without discrimination based on disability in violation of Section 107(a) of title I of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Section 707 of Title VII, 42 U.S.C. § 2000e-6." (Id. ¶ 19.)

The government seeks an order declaring Defendants have violated Titles I and II of ADA, and enjoining them from engaging in discriminatory practices against employees with disabilities based on their disabilities and specifically from, inter alia, "[f]ailing or refusing to award make whole relief to Jack L. Davoll and similarly situated individuals...." (Id. at 6.)

On June 7, 1996, I denied Defendants' motion to dismiss. See United States v. City and County of Denver, 927 F.Supp. 1396 (D.Colo.1996).

On August 15, 1996, the United States' Motion for Summary Judgment on Liability under Title I in Civil Action No. 96-K-370 and Defendants' Motion for Summary Judgment were filed.

I. Standard for Motion for Summary Judgment.

Under Federal Rule of Civil Procedure 56(c), a court may grant summary judgment where there is no issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The burden of establishing the non-existence of a material fact is initially on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), Thrifty Rent-A-Car Sys., Inc. v. Brown Flight Rental One Corp., 24 F.3d 1190, 1194 (10th Cir.1994). When the moving party has met its initial burden, it then shifts to the non-moving party to establish that there is a triable issue of fact. Id. A triable issue of fact exists where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in favor of that party. Merrick v. Northern Natural Gas Co., 911 F.2d 426, 429 (10th Cir.1990). The facts presented, and the appropriate inferences that may be drawn from them, must be construed in the light most favorable to the non-moving party. Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10. However, in the face of a properly supported motion for summary judgment, the nonmoving party may not rely on unsupported allegations without "any significant probative evidence tending to support the complaint." Id. at 249, 106 S.Ct. at 2510.

II. Defendants' Motion for Summary Judgment.

Defendants request their Motion for Summary Judgment filed on February 1, 1996 in Civil Action No. 93-K-2263, Davoll v. Webb, be fully incorporated by reference as to the claims of the United States "now consolidated herein.¹"

The United States, in opposition, incorporates its memorandum in support of its motion for summary judgment on liability under Title I in 96-K-370 and its Memorandum as Amicus Curiae Opposing Defendants' Motion for Summary Judgment in 93-K-2263.

Defendants' summary judgment motion in 93-K-2263 seeks to dismiss the individual defendants and the Civil Service Commission. This aspect of the motion is applicable here only insofar as the Civil Service Commission is concerned because no individual defendants are named in 93-K-370. In that case, I have dismissed the Civil Service Commission. I make the same ruling here.

Defendants' motion in 93-K-2263 also seeks judgment on the ADA claim in that case, asserting Plaintiffs have not met the administrative prerequisites to bringing an individual ADA action. I have already determined that the United States had met the procedural requisites for filing a claim under Titles I and II of the ADA. See United States v. City and County of Denver, 927 F.Supp. 1396 (D.Colo.1996).

Defendants' motion in 93-K-2263 also seeks judgment on the grounds that the plaintiffs in that case are not "otherwise qualified individuals" within the meaning of the ADA. This issue is addressed below vis-a-vis the United States Motion for Summary Judgment where, it argues, it is unnecessary for the United States at this liability stage, to show that any individuals are "otherwise qualified individuals" in this pattern or practice suit. I agree with the United States and therefore deny this aspect of the motion in this case.

Finally, judgment in 93-K-2263 is sought on the plaintiffs' 42 U.S.C. § 1983 claim. No such claim is brought in 96-K-370.

For the aforesaid reasons, I grant Defendants' Motion for Summary Judgment only insofar as it seeks dismissal of the Civil Service Commission for the City and County of Denver. I deny the motion in all other respects.

III. United States' Motion for Summary Judgment on Liability under Title I in Civil Action No. 96-K-370.

In this motion, the United States seeks judgment on the issue of liability in its claim under Title I of the ADA, namely that the Defendants' policy results in a pattern or practice of employment discrimination against individuals with disabilities. Specifically, the United States asserts, the policy precludes Defendants from making "reasonable accommodation" to the known physical limitations of qualified individuals with disabilities in violation of 42 U.S.C. § 12112(b)(5)(A).

For the enforcement of Title I of the ADA, Congress adopted the powers, remedies and procedures from Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin.²

The two provisions of Title VII (§§ 706 and 707) authorize the Attorney General to bring suits against public employers such as the Defendants in this case. 42 U.S.C. §§ 2000e-5(f)(1), 2000e-6. In this suit, the United States invokes § 107, 42 U.S.C. § 2000e-6. (Compl. ¶ 2.) That section provides in pertinent part:

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States....

42 U.S.C. § 2000e-6(a). The section does not require a specific complaint or a referral from the EEOC as a condition precedent to a lawsuit, nor does it require the Attorney General to follow procedures established by the EEOC before initiating suit. United States v. Allegheny-Ludlum Ind., Inc., 517 F.2d 826, 843 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976); United States v. New Jersey, 473 F.Supp. 1199, 1204-05 (D.N.J.1979).³

The United States points out that on July 1, 1996, Magistrate Judge Bruce Pringle denied Defendants' Motion for Reconsideration of Order to Consolidate Trials and Bifurcate the Trial of 96-K-370 and Brief in Support. On June 25, 1996, the magistrate judge ordered this case and Civil Action No. 93-K-2263 consolidated for the October trial date and ordered that this case would go to trial with case 93-K-2263 on the issue of liability only. Thus, in the first stage of trial of the Title I portion of the United States' action, set for trial later this month, Defendants' liability in this action will be addressed. If the United States is successful at this stage, there will be a second stage of this case which will address remedial relief.

The government asserts at the...