U.S. v. City and County of Denver

• Decision Date: 04 June 1999
• Docket Number: No. CIV. A. 96-K-370.,CIV. A. 96-K-370.
• Citation: 49 F.Supp.2d 1233
• Parties: UNITED STATES of America, Plaintiff, v. THE CITY AND COUNTY OF DENVER; and the Denver Police Department, Defendants.
• Court: U.S. District Court — District of Colorado

49 F.Supp.2d 1233

UNITED STATES of America, Plaintiff, v. THE CITY AND COUNTY OF DENVER; and the Denver Police Department, Defendants.

No. CIV. A. 96-K-370.

United States District Court, D. Colorado.

June 4, 1999.

COPYRIGHT MATERIAL OMITTED

Henry L. Solano, U.S. Attorney's Office, Denver, Joan A. Magagna, U.S. Department of Justice, Housing & Civil Enforcement Section, Eugenia Esch, U.S. Department of Justice, Washington, DC, for Plaintiff.

J. Wallace Wortham, Jr., Steven Woodrow Moore, City Attorney's Office, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON REMEDIAL ISSUES

KANE, Senior District Judge.

The United States sues the City and County of Denver ("the City") and the Denver Police Department ("the DPD") for declaratory and injunctive relief to enforce the provisions of Titles I and II of the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101, et seq., and 42 U.S.C. § 12131, et seq., and the implementing regulations. Jurisdiction exists under 42 U.S.C. §§ 12117(a), 2000e-6, 12133, and 28 U.S.C. § 1345. Before me is Defendants' Motion for Summary Judgment, which I deny.

I. Background.

The United States asserts two different claims. The first is that Defendants' policy of prohibiting reassignment of police officers with disabilities to vacant jobs within the City's Career Service Personnel system for which they are qualified constitutes a "pattern or practice" of discrimination in violation of Title I of the American With Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq. This claim was bifurcated into a liability and a remedial stage for discovery and trial.

The liability phase concluded on October 10, 1996, when I granted the United States' Motion for Summary Judgment on Liability under Title I in Civil Action No. 96-K-370. See United States v. City & County of Denver, 943 F.Supp. 1304 (D.Colo.1996). On February 11, 1997, I entered an Order of Stage II Discovery Schedule for the remedial stage, during which the United States was to identify all individuals who have been injured as a result of Defendants' proven discriminatory "pattern or practice."

The second claim was on behalf of Jack L. Davoll under Title II of the ADA, 42 U.S.C. § 12131 et seq., alleging that Defendants discriminated against Davoll by refusing to reassign him to a vacant Career Service position for which he was qualified, after he became unable to perform the essential functions of his police officer position due to his disability. The Title II claim was consolidated for trial with Davoll et al. v. Webb, Civil Action No. 93-K-2263, in which Davoll and two other former Denver police officers, Deborah Clair and Paul Escobedo alleged Defendants violated Title II of the ADA by denying them reassignment. These claims were tried and, on November 13, 1996, a jury rendered verdicts in favor of Davoll, Clair and Escobedo and awarded a total of $800,000 in compensatory damages. I later determined they were entitled to equitable relief. Defendants' appeal to the Tenth Circuit on that aspect of this case is pending.

In entering summary judgment for the United States on liability on its Title I "pattern or practice" claim, I found it had proved a prima facie case of liability by establishing each Defendant was a covered entity under Title I; Defendants' policy or practice barring the reassignment of officers with disabilities to vacant positions for which they were qualified was undisputed; and Defendants' policy or practice discriminated against "qualified individuals with disabilities" covered by Title I. United States v. City & County of Denver, 943 F.Supp. at 1309-13. At the liability stage of the "pattern and practice" suit, the government was not required to show individual discrimination regarding each person for whom it sought relief. It sufficed to show specific evidence of Defendants' discrimination regarding some of the employees that it sought to represent. Id., at 1308.

The premise of the decision granting summary judgment on the liability aspect of the Title I claim was that, although evidence that a particular person is a "qualified individual with a disability" was not necessary to show liability, it would be required to show that such person is among those individuals for whom relief may be sought. Id. at 1309. As the United States then argued, such issue is always resolved at the remedial stage of a bifurcated action. Id. (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 361, 97 S.Ct. 1843, 52 L.Ed.2d 396(1977)). Determination of whether an individual has a "disability" as defined in the ADA is an individualized inquiry. Questions of individual relief such as the employment status of an individual, rejection of his or her request for reassignment to vacant positions, and entitlement to relief were deferred until this, the remedial phase of the pattern and practice claim.

On April 15, 1998, the government filed its Report on Individual Relief, identifying thirteen officers as claimants, and maintaining each (1) has a physical or mental impairment that substantially limits one or more of his or her major life activities; (2) either requested reassignment as a reasonable accommodation, or did not do so because such request would be futile due to Defendants' "no reassignment policy; and (3) was qualified for an identified vacant position to which he or she could have been reassigned." The report requests the court to grant the claimants equitable relief, including back pay and job placement with retroactive seniority.¹ It explains their eligibility for relief and the method used to compute the monetary relief sought and seeks the placement of each claimant into the next vacancy for the position identified for that claimant as that closely resembling his or her police officer job in terms of status and pay.

Supported by voluminous attached records, the report specifies the physical or mental impairments of each claimant and the major life activity or activities substantially limited by those impairments. The report asserts each claimant was aware of Defendants' policy barring reassignment of police officers to Career Service vacancies within or outside the Denver Police Department. While most of the claimants did not request reassignment because they believed it would have been a futile gesture to do so, the report describes the steps taken by those who did request a transfer to non-patrol jobs. Referring to attached exhibits, the report identifies several Career Service vacancies for which each claimant was allegedly qualified either at the time he or she made known to Defendants his or her intention to obtain a medical retirement, or sought a service retirement.

On July 23, 1998, Defendants' Objections to the United States' Report on Individual Relief was filed, requesting that no relief be provided to any of the claimants identified by the United States. The objections are on substantially similar grounds to those raised in the motion for summary judgment. Defendants are unclear on the purpose of the report, correctly noting that no relief can be granted without a trial. On October 8, 1998 the United States filed a reply to the objections.

In their summary judgment briefs, the parties incorporate facts, arguments, and exhibits contained in their respective briefs relating to report. The report itself does not entitle the government to relief without a trial. Therefore, at this time, I do not rule on the issues raised in relation to the report, save insofar as they are encompassed by those raised in the summary judgment briefs.

II. Motion for Summary Judgment

On May 15, 1998, Defendants filed a motion for summary judgment, arguing an examination of the circumstances surrounding each claimant's separation from employment with the DPD reveals the United States cannot establish any claimant is entitled to relief under the ADA. Defendants claim the government cannot show, with regard to each claimant, the elements of a prima facie case under the ADA, namely that each (a) has "a physical or mental impairment that substantially limits one or more of [his] or [her] major life activities," 42 U.S.C. § 12102(2)(A), (b) is "a qualified individual with a disability," and (c) was terminated on account of his or her disability.² Defendants also maintain, pursuant to the Tenth Circuit's holding in Smith v. Midland Brake, Inc., 138 F.3d 1304, 1305 (10th Cir.1998), reh'g en banc granted, May 5, 1998, under the ADA, when an employee is not qualified, with or without reasonable accommodation for the job which he or she currently holds or from which he or she was terminated, the employer has no obligation to consider reassigning him or her to another position. Defendants further argue there are "lawful reasons" why the claimants would not have been transferred even if the no-reassignment policy in question did not exist. They object to the United States' use of hearsay in support of the claims and to the manner of computation of back pay. In addition, Defendants make specific objections regarding each claimant.

III. Standards for Summary Judgment.

"Summary judgment is appropriate if `there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.'" Hagelin for President Committee v. Graves, 25 F.3d 956, 959 (10th Cir.1994)(quoting Rule 56(c)). "In applying this standard, we construe the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment." Blue Circle Cement, Inc. v. Board of County Comm'rs, 27 F.3d 1499, 1503 (10th Cir.1994). "`The moving party carries the burden of showing beyond a reasonable doubt that it is entitled to judgment ....'" Baker v. Board of Regents, 991 F.2d 628, 630 (10th Cir.1993)(quoting Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987)). "Rule 56, however, imposes no requirement on the...