US v. City and County of Denver
| Decision Date | 07 June 1996 |
| Docket Number | Civil Action No. 96-K-370. |
| Citation | 927 F. Supp. 1396 |
| 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 | U.S. District Court — District of Colorado |
Henry L. Solano, U.S. Attorney, Denver, CO, Joan A. Magana, 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.
The United States sues the City and County of Denver, the Denver Police Department, and the Civil Service Commission for the City and County of Denver 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. § 12112, et seq., and 42 U.S.C. § 12131, et seq., and the implementing regulations, 29 C.F.R. Part 1630 and 28 C.F.R. Part 35.
Jurisdiction exists under 42 U.S.C. § 12117(a), 42 U.S.C. § 2000e-6, 42 U.S.C. § 12133, and 28 U.S.C. § 1345.
Before me is Defendants' motion to dismiss. I deny the motion.
On October 27, 1993, plaintiffs Jack L. Davoll, Deborah A. Clair and Paul L. Escobedo filed suit against Wellington Webb, in his capacity as 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; and Civil Service Commission for the City and County of Denver. The three plaintiffs filed suit on behalf of themselves and others "similarly situated."
Plaintiffs in Davoll I seek monetary damages, declaratory and injunctive relief pursuant to: (a) the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213; (b) Title VII of the Civil Rights Act of 1964; (c) 42 U.S.C. § 1983 and the Equal Protection and Due Process clauses of the U.S. Constitution as applied to Defendants through the Fourteenth Amendment to the U.S. Constitution. (Davoll I Sec.Am.Compl. & Jury Demand ¶ 1 filed July 5, 1994; Pretrial Order of January 16, 1996.)
Plaintiffs in Davoll I were patrol officers for the Denver Police Department who sustained work-related injuries which rendered them unable to perform the essential functions of their jobs as police officers, i.e. the ability to make a forceful arrest and/or fire a weapon. The Denver Police Department assigned each of the Plaintiffs to temporary light duty positions. (Id.)
When each plaintiff's eligibility for light duty expired, a medical determination was made that he or she could not return to full duty and was to be given a limited duty assignment for an indefinite period of time. Each plaintiff sought and was granted occupational disability retirement from the Fire and Police Pension Association.
In essence plaintiffs in Davoll I allege defendants have failed to accommodate them by providing permanent light duty positions and/or failing to reassign them to non-police jobs within the City. As a result, they seek recovery for personal injury and economic losses as well as injunctive and declaratory relief.
On February 24, 1995, I denied the motion of plaintiffs to certify Davoll I as a class action pursuant to Federal Rule of Civil Procedure 23 and to bifurcate the action into two trial phases pursuant to Rule 42(b). Davoll v. Webb, 160 F.R.D. 142, 146 (D.Colo.1995).
On February 1, 1996, defendants in Davoll I filed a summary judgment motion. On February 16, 1996, the government filed United States' Motion for Leave to Participate as Amicus Curiae, stating, inter alia, "the government believes that its interests may be affected by the outcome of the case and, further, that the government's views will be of assistance to the Court and the parties in addressing the issues raised in the litigation." (Davoll I, United States Mot. Leave to Participate as Amicus Curiae at 1.)
On February 22, 1996, I granted leave to the United States to participate as amicus curiae in the case. On March 1, 1996, the United States filed a memorandum as amicus curiae urging me to reject defendants' argument regarding reassignment as a basis for their summary judgment motion.
The summary judgment motion in Davoll I is still pending. That case is set for an eight day jury trial commencing on October 28, 1996. Discovery in the action has been completed.
On April 30, 1996, plaintiffs in Davoll I filed a motion for consolidation pursuant to Federal Rule of Civil Procedure 42(a) requesting consolidation with this case. The motion was heard by Magistrate Judge Bruce D. Pringle on May 17, 1996. The magistrate judge denied the motion "without prejudice to refiling in the event the trial date is vacated." (Davoll I, Courtroom Minutes May 17, 1996).
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." (Davoll II Compl. ¶ 1.)
The complaint describes the employment of Jack L. Davoll (of Davoll I) 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 I 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, "failing or refusing to award make whole relief to Jack L. Davoll and similarly situated individuals. ..." (Id. at 6.)
On May 20, 1996, I denied the United States' Motion to Bifurcate for Discovery and Trial the Issues of Liability and Individual Relief filed May 17, 1996.
Defendants in Davoll II seek dismissal under Federal Rules of Civil Procedure 12(b)(1) and 42(a) arguing that (1) the United States has failed to meet the procedural requisites for filing a claim under Title I of the ADA; (2) Davoll I extinguishes the right of the United States to file a separate action pursuant to title II of the ADA; and (3) the United States' complaint is duplicative of that in Davoll I and prejudices Defendants.
Under Rule 12(b)(1), a complaint may be dismissed for lack of subject matter jurisdiction. Rule 42, rather than setting out grounds for dismissal of an action, addresses the issue of actions involving common questions of law or fact. The rule allows me to order such actions consolidated or "make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." Fed.R.Civ.P. 42(a)
(1) Procedural Requisites.
Title I of the ADA prohibits employment discrimination on the basis of disability in regard to, inter alia, hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment. 42 U.S.C. § 12112; 29 C.F.R. pt. 1630 (1995).
Title II of the ADA prohibits discrimination on the basis of disability in participation in the benefits of the services, programs or activities of a public entity. 42 U.S.C. § 12132; 28 C.F.R. pt. 35 (1995). Here, the United States brings suit under both titles. (Compl. ¶ 1.)
Defendants assert the United States has failed to meet the procedural requisites for filing a claim under Title I of the ADA. They maintain regulations implementing Title II require the Civil Rights Division to issue a non-compliance Letter of Findings reflecting findings of fact and conclusions of law before referring the matter to the Attorney General with a recommendation for appropriate action, citing 28 C.F.R. §§ 35.172, 173 and 174 (1995). They assert the Civil Rights Division has not issued such letter regarding the Title I claim in this matter.1
The United States points out, 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 ...
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