IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO C.A. NOS. 96-K-370 & 93-K-2263 UNITED STATES OF AMERICA, ) ) JACK L. DAVOLL; DEBORAH A. CLAIR; ) and PAUL L. ESCOBEDO, ) ) Plaintiffs, ) ) v. ) ) ) THE CITY AND COUNTY OF ) DENVER; THE DENVER POLICE ) Hon. John L. Kane Jr. DEPARTMENT; and THE CIVIL ) SERVICE COMMISSION FOR THE ) CITY AND COUNTY OF DENVER, ) ) Defendants. ) ) UNITED STATES' MOTION FOR SUMMARY JUDGMENT ON LIABILITY UNDER TITLE I IN CIVIL ACTION NO. 96-K-370 Plaintiff United States moves this Court under Rule 56 of the Federal Rules of Civil Procedure to grant summary judgment on liability under title I in favor of the United States in Civil Action No. 96-K-370. Defendants'1 policy of denying "reasonable accommodation" to the known physical 1 Defendants are the City and County of Denver, the Denver Police Department and the Civil Service Commission for the City and County of Denver in Civil Action No. 96-K-370 and Civil Action No. 93-K-2263. They are referred to throughout as "Defendants." limitations of qualified individuals with disabilities, violates both title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. S 12112, and title II of the ADA, 42 U.S.C. S 12132. The United States' Motion for Summary Judgment is limited to the United States' claim under title I; namely, that Defendants' policy results in a pattern or practice of employment discrimination against individuals with disabilities. The United States requests this Court to issue an Order enjoining Defendants from maintaining a policy that precludes reassignment of qualified individuals with disabilities to non-sworn (civilian) vacancies located within the Denver Police Department or elsewhere in the City and County. A Memorandum in support of this Motion is attached. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division By: L. IRENE BOWEN EUGENIA ESCH SHEILA M. FORAN Attorneys United States Department of Justice Civil Rights Division Disability Rights Section P.O. Box 66738 Washington, D.C. 20035-6738 -2- IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO C.A. NOS. 96-K-370 & 93-K-2263 UNITED STATES OF AMERICA, ) ) JACK L. DAVOLL; DEBORAH A. CLAIR; ) and PAUL L. ESCOBEDO, ) ) Plaintiffs, ) ) v. ) ) ) THE CITY AND COUNTY OF ) DENVER; THE DENVER POLICE ) Hon. John L. Kane Jr. DEPARTMENT; and THE CIVIL ) SERVICE COMMISSION FOR THE ) CITY AND COUNTY OF DENVER, ) ) Defendants. ) ) UNITED STATES' MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ON LIABILITY UNDER TITLE I IN CIVIL ACTION NO. 96-K-370 TABLE OF CONTENTS I. INTRODUCTION ... 1 II. STANDARD FOR SUMMARY JUDGMENT ................................... 4 III. ARGUMENT A. THE UNITED STATES HAS ESTABLISHED A PRIMA FACIE CASE OF LIABILITY IN A PATTERN OR PRACTICE CASE OF EMPLOYMENT DISCRIMINATION UNDER THE ADA ................... 5 1. DEFENDANTS ARE COVERED ENTITIES UNDER TITLE I OF THE ADA ................................... 6 2. DEFENDANTS' POLICY BARS THE REASSIGNMENT OF OFFICERS WITH DISABILITIES TO VACANT POSITIONS FOR WHICH THEY ARE QUALIFIED ........ 6 3. DEFENDANTS' POLICY DISCRIMINATES AGAINST "QUALIFIED INDIVIDUALS WITH DISABILITIES" COVERED BY TITLE I ................................... 6 a. Title I of the ADA Obligates Employers to Provide "Reasonable Accommodation" to Employees with Disabilities ............................... 6 b. The ADA'S Title I "Reasonable Accommodation" Obligation Includes Reassignment ................ 6 c. The ADA Requires Defendants to Make Reasonable Changes in Their Regular Reassignment Policies, Practices, and Procedures in Order to Provide Equal Opportunities to Qualified Individuals with Disabilities ............................... 9 B. DEFENDANTS CANNOT ESTABLISH THE AFFIRMATIVE DEFENSE OF "UNDUE HARDSHIP" 1. DEFENDANTS HAVE THE BURDEN OF PROVING THAT REASSIGNMENT WILL RESULT IN SIGNIFICANT DIFFICULTY OR EXPENSE ............................... 12 2. DEFENDANTS HAVE NO FACTUAL BASIS FOR A CLAIM OF UNDUE HARDSHIP ............................. 13 3. THE CITY AND COUNTY OF DENVER CHARTER DOES NOT CREATE A LEGAL BAR TO REASSIGNMENT ..................................... 14 -i- 4. THE COST OF REASSIGNMENT DOES NOT CONSTITUTE A SIGNIFICANT EXPENSE .................... 16 5. REASSIGNMENT WILL NOT DISRUPT DEFENDANTS' OPERATIONS .............................. 18 IV. CONCLUSION ..................................................... 19 -ii- TABLE OF AUTHORITIES I. Cases Page Alexander v. Choate, 469 U.S. 287 (1985) ........................... 10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................ 5 Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993) ........................ 12 Beck v. University of Wisc. Bd. of Regents, 1996 WL 29449 (7th Cir. 1996) ................................................ 9 Benson v. Northwest Airlines, 62 F.3d 1108, 1114 (8th Cir. 1995) ................................................ 8 Beveridge v. Lewis, 939 F.2d 859 (9th Cir. 1991) ................... 15 Bryant v. Better Business Bureau of Greater Md., Inc., 923 F. Supp. 720 (D. Md. 1996) ............................ 12, 14 Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993) .......... 14 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....................... 5 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ........................................ 7, 13 City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973) ........................................... 15 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) .......... 10 Don't Tear It Down, Inc. v. Pennsylvania Ave. Dev. Corp., 642 F.2d 527 (D.C. Cir. 1980) ................................. 15 Emrick v. Libbey-Owens-Ford, 875 F. Supp. 393 (E.D. Tex. 1995) ............................................... 9 Evans v. Evans, 818 F. Supp. 1215 (N.D. Ind. 1993) ................. 15 Free v. Bland, 369 U.S. 663 (1962) ................................. 15 Gibbons v. Ogden, 22 U.S. 1 (1824) .............................. 4, 15 Gilbert v. Frank, 949 F.2d 637 (2d Cir. 1991) ...................... 14 Griggs v. Duke Power, 401 U.S. 424 (1971) ........................... 7 -iii- Guice Mills v. Derwinski, 967 F.2d 794 (2d Cir. 1992) ............... 8 Haysman v. Food Lion Inc., 893 F. Supp. 1092 (S.D. Ga. 1995) ................................................ 8 Henchey v. Town of North Greenbush, 831 F. Supp. 960 (N.D.N.Y. 1993) ............................................... 14 Hillsborough County, Fla. v. Automated Medical Lab, Inc., 471 U.S. 707 (1985) ............................................15 Hogue v. MQS Inspection, Inc., 875 F. Supp. 714 (D. Colo. 1995) .................................................8 International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ............................................ 5 Leslie v. St. Vincent New Hope, Inc., No. IP 94-0922-C H/G, 1996 WL 69550 (S.D. Ind. 1996) ..................................9 Nelson v. Thornburgh, 567 F. Supp. 369 (E.D. Pa. 1983), aff'd, 732 F.2d 146 (3d Cir. 1984) .........................13, 17 North Dakota v. United States, 495 U.S. 423 (1990) ..................15 Philbin v. General Electric Capital Auto Lease, 929 F.2d 321 (7th Cir. 1991) .................................................7 Shiring v. Runyon, No. 95-3547, 1996 WL 417636 (3rd Cir. 1996) .......8 Thompson v. Borg-Warner Protective Servs. Corp., No. C-94-4015 MHP, 1996 WL 162990 (N.D. Cal. 1996) .............13 Vande Zande v. Wisconsin Dep't of Admin., 851 F. Supp. 353 (W.D. Wis. 1994), aff'd, 44 F.3d 538 (7th Cir. 1995) .........8, 9 Vazquez v. Bedsole, 888 F. Supp. 727 (E.D.N.C. 1995) .................8 White v. York Int'l Corp., 45 F.3d 357 (10th Cir. 1995) ..............8 -iv- II. Constitutions, Statutes, Regulations, and Legislative Materials Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. S 12101 et. seq. ........................passim City and County of Denver Charter ...............................passim H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2 (1990) ...............8 29 C.F.R. pt. 1630, app. ........................................passim U.S. Constitution, art. VI, cl. 2 ................................4, 15 III. Court Rules Fed. R. Civ. P. 56(c) ................................................4 -v- I. INTRODUCTION Each year, several patrol officers ("officers") employed by the City and County of Denver Police Department ("DPD") become disabled - some due to injuries suffered in the line of duty - such that they can no longer effect a forcible arrest or shoot a weapon. Although these officers may have served on the DPD's police force for many years, they are not reassigned to jobs they still can perform. Instead, they are required to retire on disability. The City and County of Denver ("City") refuses to reassign them to vacancies for which they are qualified, within the DPD or elsewhere in the City and County. The financial repercussions for the officers are great: disability pensions may be less than half of the officers' former salaries, and officers on disability are responsible for securing their own health insurance. See Appendix A, Plaintiff United States' Statement of Undisputed Facts ("Fact") Nos. 46, 47. The City's policy discriminates in employment on the basis of disability in violation of both title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. S 12112, and title II of the ADA, 42 U.S.C. S 12132.1 The United States' Motion for Summary Judgment on Liability is limited to the United States' claim under title I; namely, that Defendants'2 policy results in a pattern or practice of employment discrimination against individuals with disabilities.3 Specifically, Defendants' policy precludes them from making 1 Title I of the ADA prohibits employment discrimination on the basis of disability by public and private employers alike. 42 U.S.C. S 12111 et seq. Title II prohibits discrimination on the basis of disability in all services, programs or activities of state and local governmental entities. 42 U.S.C. S 12131 et seq. 2 Defendants are the City and County of Denver, the Denver Police Department and the Civil Service Commission for the City and County of Denver in Civil Action No. 96-K-370. They are referred to throughout as "Defendants." 3 A pattern or practice exists where discrimination is the standard operating procedure of the defendant - the regular rather than the unusual practice. International Bhd. of Teamsters (continued...) -1- "reasonable accommodation" to the known physical limitations of qualified individuals with disabilities, in violation of 42 U.S.C. S 12112(b)(5)(A). The ADA defines unlawful discrimination to include the failure to make reasonable accommodation to an otherwise qualified employee with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 42 U.S.C. S 12112(b)(5)(A). The ADA specifically includes "reassignment to a vacant position" in its definition of reasonable accommodation. Id. S 12111(9)(B). Defendants admit that they have a policy that prohibits officers with disabilities from being reassigned4 to Career Service or non-sworn (civilian) vacancies located within the DPD or elsewhere in the City. Defendants claim, however, that this policy is required by the Charter for the City and County of Denver ("Charter"), which establishes several different personnel systems for City employees. The Charter provision on which Defendants rely establishes the "Classified Service" personnel system for police officers and fire fighters, and the "Career Service" personnel system for the remaining City employees. Defendants contend that because the Charter does not affirmatively provide for transfers between these personnel systems, disabled officers cannot be reassigned to Career Service vacancies. See Appendix A, Fact Nos. 18-22, 72-75. For the vast majority of City employees this bar on transfers between personnel systems is not of great moment: 9,500 of the City's 12,000 strong workforce are employees of the Career Service, which has a transfer policy specifically designed for employees with 3(...continued) v. United States, 431 U.S. 324, 336 (1977). "[I]f the admissions [of a policy of discrimination] are credited, the ... violation ... has been proven." United States v. Gregory, 871 F.2d 1239, 1243 (4th Cir. 1989). 4 The terms "transfer" and "reassignment" are used interchangeably throughout to refer to placement into a vacant position that is equivalent in terms of pay and status. See 29 C.F.R. app. S 1630.2(o) at 408. -2- disabilities, as well as a separate transfer policy for non-disabled employees. The disability transfer policy permits Career Service employees who develop disabilities such that they cannot perform their current positions to transfer to other Career Service jobs for which they are still qualified. Because there are nearly a thousand different job classifications within the Career Service, and hundreds of positions vacant each month, Career Service employees who develop disabilities but can still work are not likely to have difficulty remaining employed by the City. Appendix A, Fact Nos. 4, 5, 27, 29, 85-87. In contrast, the Classified Service -- although it has a general transfer policy -- has no available positions to which officers with disabilities can transfer. This is because the DPD requires every member of its sworn force of nearly 1,500, no matter what his or her actual duties, to be able to shoot a weapon and effect a forcible arrest.5 The result of this requirement is that there are no positions to which officers whose disabilities prevent them from being able to shoot a weapon and effect a forcible arrest can transfer within the Classified Service. Appendix A, Fact Nos. 6, 14-17, 19, 23. If disabled officers seek to retain City employment, the only avenue remaining is to compete for Career Service jobs as brand-new applicants for City employment. No credit is given to disabled officers for their years of service to the City; they must undergo whatever entry-level tests and interview assessments are required for external applicants, and compete with these applicants as though they had never before worked for the City. Since Career Service vacancies often draw hundreds of applicants, this is no small feat. Appendix A, Fact No. 15. Because Defendants do not dispute the existence of their "no reassignment" policy, this case is ideally suited for summary judgment. Liability here is purely a question of law: 5 Whether Defendants' identification of these as essential functions of every police force position complies with the ADA is at issue in private plaintiffs' lawsuit (C.A. No. 93-K- 2263) ("Davoll I"). -3- namely, whether the City can refuse to reassign employees with disabilities to vacancies they can perform based on a Charter provision establishing separate personnel systems. The United States maintains that Defendants cannot do so consistent with the ADA. The only defense available to a reasonable accommodation claim is "undue hardship," which Defendants cannot establish. Defendants admit that they have never actually assessed or studied the costs or burdens of reassigning officers with disabilities to Career Service positions. Appendix A, Fact Nos. 53-62. The United States does not contend that Defendants must create one entity responsible for all City personnel functions rather than maintaining several personnel systems. What the United States does contend is that Defendants cannot rely on their structure of separate personnel systems to shield them from compliance with the ADA. The ADA prohibits Defendants from perpetuating a structure that builds a "wall" between personnel systems for purposes of reassignment. If Defendants' Charter is read to preclude reassignment, the provision at issue is preempted insofar as it conflicts with the ADA.6 Even if the provision were not preempted, Defendants would be required to change their reassignment policy by amending the Charter. Of course, if the Charter is not read to preclude reassignment, Defendants need not amend the Charter in order to comply with the ADA; they need only establish a policy whereby officers with disabilities are permitted to transfer to Career Service positions. II. STANDARD FOR SUMMARY JUDGMENT Under Fed. R. Civ. P. 56(c), summary judgment is proper only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a 6 Where a state or local law is inconsistent with the operation of a federal statute the state or local law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). The Supremacy Clause of the U.S. Constitution provides that "the Laws of the United States which shall be made in Pursuance" of the Constitution "shall be the supreme Law of the Land...." U.S.Const. art. VI, cl. 2. -4- matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at 248. An issue of fact concerns "material" facts only if establishment thereof might affect the outcome of the lawsuit under governing substantive law. Id. The burden of proving that no issue of material fact exists falls upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court must view all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and must resolve all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 261. The undisputed facts of this case support a finding of summary judgment in favor of the United States. III. ARGUMENT A. THE UNITED STATES HAS ESTABLISHED A PRIMA FACIE CASE OF LIABILITY IN A PATTERN OR PRACTICE CASE OF EMPLOYMENT DISCRIMINATION UNDER THE ADA7 In order to prove a prima facie case of liability in a pattern or practice case of employment discrimination under the ADA, the United States must establish that (a)defendant is a covered entity under title I; (b) defendant's policy or practice is undisputed; and (c) defendant's policy or practice discriminates against "qualified individuals with 7 On July 1, 1996, the Court bifurcated discovery and trial of the title I portion of the United States' action into two phases: stage one, dealing with Defendants' liability; and if necessary, stage two, addressing remedial relief. At the initial "liability" stage of a pattern or practice suit, the United States is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy. Its burden, in stage one, is to establish a prima facie case that such a policy existed. 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 are deferred until the remedial phase and are undertaken only if this Court finds that the defendants violated title I. See International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977). Thus, the identity of all of the victims of Defendants' discriminatory policy and practices and the issues surrounding remedial relief will not be addressed in this Motion. -5- 401647 disabilities." The undisputed facts establish a prima facie case of liability. 1. DEFENDANTS ARE COVERED ENTITIES UNDER TITLE I OF THE ADA Defendants admit they are persons, employers, and covered entities within the meaning of title I. Appendix A, Fact Nos. 1-3. 2. DEFENDANTS' POLICY BARS THE REASSIGNMENT OF OFFICERS WITH DISABILITIES TO VACANT POSITIONS FOR WHICH THEY ARE QUALIFIED Defendants further admit that they have a policy and practice that prohibits the reassignment of officers who develop disabilities to Career Service or non-sworn (civilian) vacancies. Appendix A, Fact Nos. 14-21. 3. DEFENDANTS' POLICY DISCRIMINATES AGAINST "QUALIFIED INDIVIDUALS WITH DISABILITIES" COVERED BY TITLE I a. Title I of the ADA Obligates Employers to Provide "Reasonable Accommodation" to Employees with Disabilities The ADA defines unlawful discrimination to include the failure to make reasonable accommodation to an otherwise qualified employee with a disability, unless the employer can show that the accommodation would impose an undue hardship on the operation of its business. 42 U.S.C. S 12112(b)(5)(A). Reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done in order to allow a qualified individual with a disability to enjoy equal employment opportunity. 29 C.F.R. app. S 1630.2(o) at 406-07. b. The ADA'S Title I "Reasonable Accommodation" Obligation Includes Reassignment The ADA specifically includes "reassignment to a vacant position" in its definition of reasonable accommodation. 42 U.S.C. S 12111(9)(B).8 Reassignment need only be to "an 8 The statute states: (continued...) -6- 401648 equivalent position, in terms of pay, status, ... if the individual is qualified, and if the position is vacant within a reasonable amount of time." 29 C.F.R. app. S 1630.2(o) at 408.9 Committee reports describing the final ADA legislation chronicle Congress's steadfast intent to remove barriers confronting the disabled worker by explicitly including reassignment as a reasonable accommodations: Reasonable accommodation may also include reassignment to a vacant position. If an employee, because of disability, can no longer perform the essential functions of a job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and employer from losing a valuable worker. 8(...continued) The term "reasonable accommodation" may include: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. See 42 U.S.C. S 12111(9) (emphasis added); see also 29 C.F.R. app. S 1630.2(o) at 406-08. 9 Reassignment may not be used to limit, segregate or otherwise discriminate against individuals with disabilities by forcing reassignment to undesirable positions or to designated offices or facilities. 29 C.F.R. app. S 1630.2(o) at 407-08. Here, Defendants limit police officers with disabilities to Classified Service positions which by virtue of their disabilities, they cannot perform. Regulations to title I of the ADA were promulgated by the Equal Employment Opportunity Commission ("EEOC") and are contained in 29 C.F.R. S 1630. "Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984); see also Griggs v. Duke Power, 401 U.S. 424, 434-35 (1971) (discussing guidelines issued by the EEOC interpreting Title VII, and noting that the "administrative interpretation of the Act by the enforcing agency is entitled to great deference"); see also Philbin v. General Elec. Capital Auto Lease, 929 F.2d 321, 324 (7th Cir. 1991) (citing to Chevron and noting that the Court is bound to give substantial weight to the EEOC's interpretation of a statute that it administers). -7- 401649 H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 305 (emphasis added). 10 Courts have routinely recognized reassignment as a form of reasonable accommodation. See White v. York Int'l Corp., 45 F.3d 357, 362 (10th Cir. 1995) (reassignment to a vacant position is possible accommodation); Benson v. Northwest Airlines, 62 F.3d 1108, 1114 (8th Cir. 1995) (same). The court in Vande Zande v. Wisconsin Dep't of Admin., 851 F. Supp. 353 (W.D. Wis. 1994), aff'd, 44 F.3d, 538 (7th Cir. 1995), found that "offering an employee a new position without a reduction in pay or benefits is a reasonable accommodation 'virtually as a matter of law.'" Id. at 361 (quoting Guice-Mills v. Derwinski, 967 F.2d 794, 798 (2d Cir. 1992)); see also Hogue v. MOS Inspection, Inc., 875 F. Supp. 714, 721 (D. Colo. 1995); Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1104 (S.D. Ga. 1995); and Vazquez v. Bedsole, 888 F. Supp. 727, 731 (E.D.N.C. 1995) (all recognizing reassignment as a form of reasonable accommodation). 10 The ADA's legislative history is particularly important because the definition of "reasonable accommodation" in the regulations implementing the Rehabilitation Act of 1973, 29 U.S.C. S 701 et seq. - from which the ADA evolved - did not refer to reassignment. Accordingly, under the Rehabilitation Act some courts had determined that "reasonable accommodation" did not include reassignment. As the court in Haysman v. Food Lion Inc., 893 F. Supp. 1092, 1104 (S.D. Ga 1995), explained: "[t]he ADA, unlike the Rehabilitation Act, contains explicit language concerning the employer's duty to consider reassignment to a vacant position as a possible accommodation if the employee is no longer able to perform the essential functions of his original job.... Thus, under the ADA, reassignment is appropriate when no accommodation would enable the plaintiff to remain in his current position, he is qualified (with or without reasonable accommodation) for another position, and that position is vacant within a reasonable time." Id. (emphasis added). In 1992, the Rehabilitation Act was amended to provide that the standards applied in title I ADA cases - including the explicit addition of "reassignment" as a form of reasonable accommodation - henceforth were also applicable to cases of employment discrimination brought under the Rehabilitation Act. 29 C.F.R. S 1614.203. See discussion in Shiring v. Runyon, No. 95-3547, 1996 WL 417636 (3rd Cir. 1996) at *3-*4. -8- c. The ADA Requires Defendants to Make Reasonable Changes in Their Regular Reassignment Policies, Practices, and Procedures in Order to Provide Equal Opportunities to Qualified Individuals with Disabilities Reassignment as a means of reasonable accommodation is more than making the usual opportunities available on a nondiscriminatory basis; it requires a change in the usual policy where doing so is "reasonable." Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 542-43 (7th Cir. 1995) ("It is plain enough what 'accommodation' means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work."); see also Beck v. University of Wisc.Bd. of Regents, No. 95-2479, 1996 WL 29449, at *3 (7th Cir. Jan. 26, 1996). Some courts have interpreted reasonable accommodation to require employers to reassign qualified individuals with disabilities to vacant positions if, and only if, the employer has a regular practice or policy of reassigning non-disabled employees to other positions. 11 But this interpretation makes a nullity of the ADA's inclusion of reassignment as a form of reasonable accommodation. If reassignment is only required where a reassignment policy already exists for all employees, there would be no need for the ADA to require that it be provided for employees with disabilities. Congress clearly did not intend to limit reassignment for qualified individuals with disabilities to situations where reassignment is already generally available. There is no question that the ADA forces employers to move beyond the traditional analysis used to appraise non-disabled workers and to consider reassignment to a vacant position as a method of enabling a disabled worker to do the job without creating undue hardship. See, e.g., Leslie v. St. Vincent New Hope, Inc., No. IP 94-0922-C H/G, 1996 WL 69550, at *9 (S.D. Ind. Feb. 7, 1996) (the ADA may require reassignment even if the employer does not have a regular policy or practice of permitting non-disabled employees to 11 See, e.g., Emrick v. Libbey-Owens-Ford, 875 F. Supp. 393, 398 (E.D. Tex. 1995). -9- transfer). 12 In the present case, the employer - the City and County of Denver - already has a regular practice or policy of reassignment. Both the Career Service and Classified Service personnel systems have transfer policies that allow non-disabled employees to transfer to other positions of the same or similar classifications. Appendix A, Fact Nos. 7-11, 26-28. The ADA here would not require the creation of a reassignment policy where none existed before, but rather only modification of practices that prohibit transfers across personnel systems. 13 12 Defendants contend in their Answer that reassignment of officers with disabilities is not required because "[t]he ADA does not require affirmative action." Defs.' Answer, Affirmative Defense No. 6. Of course, this is not a case of affirmative action. Affirmative action refers to a "remedial policy for the victims of past discrimination." The term reasonable accommodation relates to the "elimination of existing obstacles against the handicapped." Alexander v. Choate, 469 U.S. 287, 300 n.20 (1985). Nevertheless, citing Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995), Defendants argue that the ADA does not obligate them to give "priority" to disabled individuals over those who are not disabled. Defendants' reliance on Daugherty is misplaced. The plaintiff in Daugherty was a part-time employee, who demanded as reasonable accommodation a promotion to a full-time job. Under the ADA, an employer has no duty to promote a disabled employee as a reasonable accommodation. All that the ADA mandates is that the reassignment be to "an equivalent position, in terms of pay, status, etc.," 29 C.F.R. app. S 1630.2(o) at 408, if the individual is qualified, and a vacancy exists. Indeed, an employer may reassign an individual to a lower graded job if no equivalent job is available. 29 C.F.R. app. S 1630.2(o) at 408. 13 AS noted previously, the City has a separate disability transfer policy for Career Service employees. According to Glen Legowik, the Employee Relations Supervisor for the Career Service, the City enacted this disability transfer policy in 1993 in order to give a "disabled employee at least a decent chance of remaining employed somewhere in the career service system. And we felt that was fair, and it was the least we could do." Appendix A, Fact No. 28. Even Defendants' former Manager of Safety recognized the unfairness of not providing similar opportunities to police officers and other members of the Classified Service. In a letter dated March 2, 1993, Manager of Safety Ms. Elizabeth McCann sought (continued...) -10- The case of Jack Davoll ("Davoll"),14 a patrol officer who served on the DPD for nineteen years, aptly illustrates how Defendants' reassignment policy discriminates against qualified individuals with disabilities. Davoll suffered injuries in the line of duty which resulted in a physical impairment that substantially limits a major life activity within the meaning of the ADA.15 Davoll is an individual with a disability under the ADA.16 Appendix A, Fact Nos. 31-44. Davoll is also a "qualified individual with a disability who with or without reasonable 13(...continued) advice from Mr. Fred Timmerman, Personnel Director of the Career Service Authority, regarding the feasibility of a transfer. Specifically, Ms. McCann asked Mr. Timmerman to consider moving fire fighters and police officers, who were permanently injured in the line of duty to Career Service positions, in a "more direct manner" such as "waiv[ing] the testing procedures" she stated: "These people have been trained by the city and given a great deal of service to the city: since they have been injured as a result of working for the city, it would seem appropriate that they remain employees of the City in a civilian capacity." See Appendix A, Fact No. 24. 14 The United States offers Mr. Davoll's case as an example of how Defendants' policy operates to discriminate against individuals covered by title I. This discussion is not intended to support summary judgment as to the United States' claim under title II on Mr. Davoll's behalf. The United States expects to show in the stage two portion of its action (addressing remedial relief) that at least twenty-five (25) officers were affected by Defendants' discriminatory policies for the period July 26, 1992 (when the ADA became effective for employers with twenty-five (25) or more employees) to the present. 15 On January 29, 1991, Davoll's police car was struck broadside during a high speed chase. Davoll sustained injuries to his neck, back and shoulder. These injuries caused the Medical Director of the City's Occupational Health and Safety Clinic to conclude that Mr. Davoll should have "no involvement in resistive activities or altercations." Appendix A, Fact Nos. 32-34. 16 The term "disability" means, with respect to an individual, "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. S 12102(2). Davoll is unable to sit, stand or walk for any given length of time. Davoll's condition substantially limits -- among other major life activities - his ability to lift, walk and stand. Appendix A, Fact Nos. 35-36, 39-40. -11- accommodation, can perform the essential functions of the employment position that such individual holds or desires," 42 U.S.C. S 12111(8), as his breadth of police experience and years of satisfactory performance in the DPD demonstrate. During his nineteen-year tenure with the DPD, Davoll gained important experience that is relevant for a wide range of nonsworn positions including an investigator, lab technician, firearms instructor, or dispatcher. Defendants do not dispute that Davoll requested reasonable accommodation for his disability. Defendants also do not dispute that their policy precluded them from granting Davoll's reassignment requests. Appendix A, Fact No. 31. B. DEFENDANTS CANNOT DEMONSTRATE THAT ALLOWING REASSIGNMENT WOULD RESULT IN UNDUE HARDSHIP 1. DEFENDANTS HAVE THE BURDEN OF PROVING THAT REASSIGNMENT WILL RESULT IN SIGNIFICANT DIFFICULTY OR EXPENSE Defendants bear the burden of proving the affirmative defenses raised in their Answer.17 The only defense available to a reasonable accommodation claim is "undue hardship," which Defendants cannot establish. Under the ADA, "undue hardship" is "an action requiring significant difficulty or expense." 42 U.S.C. S 12111(10)(A).18 Undue hardship "refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business."19 Criteria used to establish 17 Bryant v. Better Business Bureau of Greater Md., Inc., 923 F. Supp. 720, 738 (D. Md. 1996) (citing Barth v. Gelb, 2 F.3d 1180, 1182 (D.C. Cir. 1993), cert. denied, -- U.S.--, 114 S. Ct. 1538 (1994)). 18 The EEOC's interpretative guidance explains that undue hardship means "significant difficulty or expense in, or resulting from, the provision of an accommodation. 29 C.F.R. app. S 1630.2(p) at 408. 19 29 C.F.R. app. S 1630.2(p) at 408 (citing S. Rep. No. 116, 101st Cong., 1st Sess. 35 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 67 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 349). -12- this defense include: the size of the employer; the size of its budget; nature of its operation; number of employees; structure of its workforce and the nature and cost of the accommodation. Id. The larger the employer, the larger the budget and the greater the burden it will be expected to assume. See, e.g., Nelson v. Thornburgh, 567 F. Supp. 369, 376 and 380 (E.D. Pa. 1983); EEOC Title I Technical Assistance Manual at III-12.20 2. DEFENDANTS HAVE NO FACTUAL BASIS FOR A CLAIM OF UNDUE HARDSHIP21 Defendants concede that they have never performed any analysis of the cost or diffculty of providing an accommodation by reassignment. Defendants admit they have no idea what the cost to the City would be of adopting a policy whereby officers with 20 Courts have also deferred to the EEOC's interpretation of its regulations in the agency's Title I Technical Assistance Manual. See, e.g., Thompson v. Borg-Warner Protective Services Corp., No. C-94-4015 MHP, 1996 WL 162990 at "4 (N.D. Cal. Mar. 11, 1996) (according "broad deference" to interpretations in the EEOC 1995 ADA Manual on Enforcement Guidance, citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984)). 21 In their undue hardship defense, Defendants assert that "[n]either Jack Davoll nor any other member of the putative class of plaintiffs represented by the United States can be accommodated to perform the job of Denver Police officer without undue hardship and expense to the Defendants." Appendix A, Attachment 2, Affirmative Defense No. 4 (emphasis added). The United States does not contend that officers with disabilities should be reassigned to sworn Civil Service positions (for which the DPD requires an individual have the ability to shoot a weapon and effect a forcible arrest). Such a contention would be fruitless. Police officers whose disabilities prevent them from being able to shoot a weapon or effect a forcible arrest cannot be reassigned to positions for which the DPD maintains these are essential functions. On the contrary, the United States is challenging Defendants' policy barring the reassignment of officers with disabilities to non-sworn vacancies for which they are qualified. Defendants' Affirmative Defense No. 4 recalls an argument raised in the summary judgment motion Defendants filed in Davoll I. There, Defendants insisted that, in order to be considered a "qualified individual with a disability" eligible for a reassignment, employees would have to be able to perform the essential functions of the job for which they were originally hired. But, of course, if they could do so, there would be no need to accommodate them by reassignment. -13- disabilities could transfer to the Career Service. Appendix A, Fact Nos. 50-67. In order to withstand judicial scrutiny, an employer's undue hardship defense must have a strong factual basis. Bryant v. Better Business Bureau of Greater Md., Inc., 923 F. Supp. at 740-41 (D. Md. 1996). In Bryant, an employer raised undue hardship as a defense for its refusal to provide a TTY device22 as an accommodation to a hearing impaired employee. The court found that the employer's decision to deny the accommodation without consulting anyone or reviewing relevant literature demonstrated that the employer did not perform any genuine analysis of providing the TTY device as an accommodation. Id. at 741.Thus, the court, in denying the employer's motion for partial summary judgment, held that: [A]lthough [the employer was] not required to determine with mathematical certainty whether the TTY system would have caused [it] an 'undue hardship,' a decision lacking any substantial evidentiary basis whatsoever is clearly insufficient.... In sum, the [employer has] failed to meet [its] burden with respect to the undue hardship defense. Id.; see also Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993) ("An employer, to meet its burden under the [Rehabilitation] Act, may not merely speculate that a suggested accommodation is not feasible."); Henchey v. Town of North Greenbush, 831 F. Supp. 960, 965 (N.D.N.Y. 1993) (under the Rehabilitation Act, "the ultimate burden of proof on the issue of reasonable accommodation is on the employer.") (citing Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991)). 3. THE CITY AND COUNTY OF DENVER CHARTER DOES NOT CREATE A LEGAL BAR TO REASSIGNMENT The United States contends, and Defendants concede, that there is nothing in the Charter which expressly prohibits the reassignment of officers to vacancies in the Career Service. But Defendants nevertheless maintain that a Charter provision that establishes 22 Otherwise known as a "TDD," or "telecommunications device for the deaf," this device functions like a telephone for people who are deaf. The device allows someone who is deaf to communicate over the telephone lines by typing directly to other TDD users, or through a "relay" operator to communicate with any telephone user. -14- 40160-6 separate personnel systems for Classified Service and Career Service employees should be understood to preclude reassignment between personnel systems. Appendix A, Fact No. 73, 76-77. Even if the Charter is interpreted to preclude reassignment, however, the provision at issue is preempted insofar as it conflicts with the ADA. Where a state or local law is inconsistent with the operation of a federal statute the state or local law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824).23 Any state or local law, however clearly within a jurisdiction's acknowledged power, "which interferes with or is contrary to federal law, must yield." Free v. Bland, 369 U.S. 663, 666 (1962).24 Absent preemption, Defendants can interpret or amend their Charter to provide for reassignment for officers with disabilities. Amending the Charter is not a complicated or expensive process, and is undertaken quite frequently; some five to seven proposed 23 The Supremacy Clause of the U.S. Constitution, art. VI, cl. 2, provides that "the Laws of the United States which shall be made in Pursuance" of the Constitution "shall be the supreme Law of the Land...." For purposes of the Supremacy Clause, the constitutionality of local ordinances is analyzed in the same way as that of state-wide laws. See, e.g., City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 632 (1973). 24 See Hillsborough County, Fla. v. Automated Medical Lab. Inc., 471 U.S. 707, 713 (1985); see also Evans v. Evans, 818 F. Supp. 1215 (N.D. Ind. 1993) (policy creating a waiting period before students with learning disabilities could get assigned to residential placement in private schools was preempted by the Individuals with Disabilities Education Act, which mandated implementation "as soon as possible."). See also North Dakota v. United States, 495 U.S. 423, 434, (1990); Don't Tear It Down, Inc. v. Pennsylvania Ave. Dev. Corp., 642 F.2d 527, 533 (D.C. Cir. 1980); Beveridge v. Lewis, 939 F.2d 859, 862 (9th Cir. 1991). Moreover, any state or local laws not preempted by the ADA are explicitly identified as such in the statute. See 42 U.S.C. S 12113(d)(3) (nothing in the ADA is to be construed to preempt state and local food handling laws). -15- amendments are included on the ballot at election time each year.25 Appendix A, Fact Nos. 78-80. Further, the amendment would be simple to draft, and likely to pass. In 1978, a similar amendment to the Charter was enacted permitting certain members of the Classified Service of the Police Department to be appointed to Career Service positions without examination -- precisely what is needed here.26 Appendix A, Fact Nos. 79, 81-83. The same type of amendment would suffice to bring Defendants into ADA compliance here. 4. THE COST OF REASSIGNMENT DOES NOT CONSTITUTE A SIGNIFICANT EXPENSE The key component of the undue hardship defense is a calculation of the financial or administrative costs of the accommodation at issue relative to the entity's overall operations. Defendants admit that they have never actually assessed or studied the costs or burdens of the accommodation at issue here. Appendix A, Fact Nos. 53-62. To the extent these can be estimated, however, the undisputed facts show the administrative and financial costs to be negligible. Appendix A, Fact Nos. 51-62. Each time that the Career Service Authority seeks to fill a vacancy, it expends resources. It must advertise the vacancy; recruit to fill the vacancy; assess the qualifications of applicants; test applicants; interview applicants; and rank applicants. Given that for some vacancies, the Career Service Authority receives hundreds of applications, the financial costs of filling a vacancy can be substantial. Appendix A, Fact Nos. 87-89. Overall cost savings are likely to result from reassignment also because when officers 25 Defendants can and have amended the Charter in the past. In his deposition, Police Chief Michaud testified that at least on two occasions he "asked" for and received at least two "charter changes." Chief Michaud's testimony suggesting that revising the Charter is not burdensome was echoed by other deponents. Deposition testimony indicates that the cost of placing such an amendment proposal on the ballot costs as little as $3,000. The City's budget is $500 million. Appendix A, Fact No. 8. 26 The Charter amendment provides that a Radio Engineer may "resign from the Classified Service and be appointed to a corresponding position in the Career Service without examination." See Appendix A, Fact No. 82. -16- are reassigned, the City retains the benefit of its investment in years of the employee's training and experience. Appendix A, Fact No. 25. Moreover, a reassignment policy for officers with disabilities is likely to save rather than cost additional resources due to the amount the State of Colorado expends on disability retirement pensions. AppendixA, Fact No. 45, 48-49. Defendants employ nearly 12,000 individuals in facilities located all over the Denver metropolitan area. Given the size of the workforce, Defendants cannot argue that reassignment as a reasonable accommodation will strain its administrative resources or hamper any of its municipal functions.27 Appendix A, Fact No. 4. In light of the size of Defendants' budget ($500 million), the potential cost of modifying Defendants' policy to permit the reassignment of officers with disabilities to Career Service vacancies is de minimis. This is particularly true since the number of positions that would be affected by a change in the DPD's reassignment policy is small -- the number of officers who apply for disability retirement averages only four (4) officers per year. Appendix A, Fact Nos. 8, 16-17. At least one court has found "undue hardship" in similar circumstances. See, e.g., Nelson v. Thornburgh, 567 F. Supp. 369, 376 and 380 (E.D. Pa. 1983) (court held that in view of the welfare department's large budget, requiring the department to reasonably accommodate blind income maintenance workers by providing readers was not an undue 27 Indeed, Police Chief Michaud testified that reassigning officers with disabilities to non-sworn vacancies would not pose an undue hardship: Q: Okay. Now, is it your belief that the second option, reassignment or transfer of disabled officers to Career Service Authority [non-sworn] positions, would be an undue burden on the police department? A: It would not be an undue burden on the police department if I think the laws or rules were changed. See Appendix A, No. 68. -17- hardship.), aff'd, 732 F.2d 146 (3d Cir. 1984), cert. denied, 469 U.S. 1188 (1985). 5. REASSIGNMENT WILL NOT DISRUPT DEFENDANTS' OPERATIONS Defendants have argued that permitting reassignment would undermine the Career Service's "merit system." The Career Service Authority requires all applicants who are not transferees to complete various entrance examinations and interview assessments. Defendants contend that allowing officers -- who, of course, are already employees of the City, and were required to undergo rigorous training and examination to become officers --would somehow weaken the "merit system." Appendix A, Fact Nos. 69-70, 84, 88. As a threshold matter, officers with disabilities seeking reassignment under the ADA need be reassigned only to jobs for which they are qualified. Further, although applicants new to City employment must complete entrance examinations and interview assessments in order to ranked and placed on a "certification list," the hiring agency need nothire the highest ranking applicant, or indeed, anyone on the list. It could instead fill the position with a transferee, or someone seeking reemployment, for example. Defendants admit that there exist no criteria governing how hiring decisions are ultimately made, and that there is no tracking or monitoring by the Career Service of decisions by hiring agencies.Appendix A, Fact Nos. 88-92. Even more importantly, the entry requirements for officers are just as, if not more rigorous than, entry requirements for Career Service jobs of similar status and pay. Treating officers with disabilities the same as brand-new applicants for City employment undervalues the significant training and experience officers with disabilities have obtainedas employees of the City -- training that demonstrates qualification for various type of jobs inthe Career Service. Appendix A, Fact Nos. 93-94. Defendants cannot escape responsibility for complying with the ADA by attempting to characterize the Career Service and Classified Service personnel systems as inviolate, - 18 - independently operating units which have no connection to each other. The City is the ultimate employer of all employees of every personnel system provided for in its Charter. It is the City that pays the salaries of every member of the Classified and Career Service. It is the City which establishes the operating budgets and determines the functions of its several personnel systems. And it is the City as a whole which is responsible for ensuring that the rights of all of its employees are protected under the ADA. Appendix A, Fact No.9. IV. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court grant the United States' Memorandum In Support of Its Motion for Summary Judgment on Liability Under Title I In Civil Action No. 96-K-370. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division By: L. IRENE BOWEN EUGENIA ESCH SHEILA M. FORAN Attorneys U.S. Department of Justice Civil Rights Division Disability Rights Section P.O. Box 66738 Washington, D.C. 20035-6738 -19- CERTIFICATE OF SERVICE I, Sheila Foran, hereby certify that the foregoing United States' Motion and Memorandum in Support of its Motion for Summary Judgment On Liability Under Title I in Civil Action No. 96-K-370 was served on August 15, 1996, via overnight express mail delivery, on the following counsel: J. Wallace Wortham, Jr., Esq. Wayne E. Vaden, Esq. Grace Fell Regan, Esq. Assistant City Attorneys Department of Law Office of City Attorney Annex I - 303 1445 Cleveland Place Denver, CO 80202 David C. Feola, Esq. 315 East Florida Avenue Denver, CO 80210 Marilee Langhoff, Esq. 6628 South Marion St Littleton, CO 80121 By: SHEILA M. FORAN Attorney U.S. Department of Justice Civil Rights Division Disability Rights Section P.O. Box 66738 Washington, D.C. 20035-6738 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO C.A. NOS. 96-K-370 & 93-K-2263 UNITED STATES OF AMERICA, ) ) JACK L. DAVOLL; DEBORAH A. CLAIR; ) and PAUL L. ESCOBEDO, ) ) Plaintiffs, ) ) v. ) ) ) THE CITY AND COUNTY OF ) DENVER; THE DENVER POLICE ) Hon. John L. Kane Jr. DEPARTMENT; and THE CIVIL ) SERVICE COMMISSION FOR THE ) CITY AND COUNTY OF DENVER, ) ) Defendants. ) ) UNITED STATES' REPLY TO DEFENDANTS' OPPOSITION TO THE UNITED STATES' MOTION FOR SUMMARY JUDGMENT ON LIABILITY UNDER TITLE I IN CIVIL ACTION NO. 96-K-370 TABLE OF CONTENTS I. INTRODUCTION .............................................................1 II. ARGUMENT ................................................................2 A. DEFENDANTS HAVE NOT REBUTTED THE UNITED STATES' PRIMA FACIE CASE OF LIABILITY IN A PATTERN OR PRACTICE CASE OF EMPLOYMENT DISCRIMINATION UNDER THE ADA ...........................2 1. The United States Need Not Demonstrate That Each Individual On Whose Behalf It May Ultimately Seek Relief Is A "Qualified Individual With A Disability" In Order To Prevail On Its Motion For Summary Judgment On Liability ..............................2 2. Reassignment Is A "Reasonable Accommodation," Not "Affirmative Action" ........................................................5 3. Employees Need Not Be Qualified To Perform The Essential Functions Of The Positions For Which They Were Originally Hired To Be Eligible For Reassignment To Other Positions For Which They Are Qualified .............................................7 B. DEFENDANTS CANNOT ESTABLISH THE AFFIRMATIVE DEFENSE OF "UNDUE HARDSHIP" ..................................................8 1. Permitting Officers With Disabilities To Transfer To Career Service Positions For Which They Are Qualified Is A Reasonable Change In Defendants' Regular Reassignment Policy ..............8 III. CONCLUSION ............................................................12 -i- I. INTRODUCTION Defendants' Opposition to Plaintiff the United States' Motion for Summary Judgment and Brief In Support 1 ("Opposition" or "Def. Opp.") wholly fails to address theUnited States' key contention: namely, that Defendants cannot escape responsibility forcomplying with the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. S 12112, by characterizing their Career Service and Classified Service personnel systems as inviolate, independently operating units which have no connection to each other. The City is responsible for ensuring that the rights of all of its employees - no matter which personnel division they are assigned to - are protected under the ADA. Here, this responsibility entails reassigning police officers who develop disabilities to vacant Career Service positions for which they are qualified. Instead of addressing this central contention, however, Defendants argue that the United States must identify all qualified individuals with disabilities affected by Defendants' "no reassignment" policy - an argument which has already been rejected by the Court.2 Defendants' Opposition also argues that the ADA "is not an affirmative action plplan." This claim is simply inapposite. Characterizing the ADA as an "affirmative action plan" has no bearing on the statute's requirements - which obligate employers to undertake certain actions on behalf of employees with disabilities which they need not undertake on behalf of other employees. In their Opposition, Defendants also maintain that employees who develop disabilities must be able to perform the essential functions of the job for which they were 1 Defendants are the City and County of Denver, the Denver Police Department ("DPD") and the Civil Service Commission for the City and County of Denver in Civil Action No. 96-K-370 and Civil Action No. 93-K-2263. They are referred to throughout as "Defendants." The United States' Memorandum in Support of Its Motion for Summary Judgment on Liability Under Title I in Civil Action No. 96-K-370 is referred to throughout as "SJ Mem." 2 See United States' Memorandum in Opposition to Defendants' Motion for Clarification of Bifurcation Order (attached as Appendix B). -1- originally hired in order to be eligible for reassignment. But employees who can perform the essential functions of the jobs for which they were hired have no need of accommodation by reassignment. Finally, Defendants' Opposition makes a claim of undue hardship. Defendants' claim is based only on conclusory statements: namely, that modifying the "no reassignment" policy is a fundamental alteration of Defendants' operations, and is not a reasonable accommodation because it requires a change in existing policy. This argument, along with Defendants' contention regarding the effect upon its "merit system" of transferring a few officers with disabilities annually to Career Service positions, is without foundation3 and was addressed at length in the United States' opening brief. See SJ Mem. at 6-10, 18-19. II. ARGUMENT A. DEFENDANTS HAVE NOT REBUTTED THE UNITED STATES' PRIMA FACIE CASE OF LIABILITY IN A PATTERN OR PRACTICE CASE OF EMPLOYMENT DISCRIMINATION UNDER THE ADA In its Memorandum in Support of Summary Judgment, the United States established all of the elements of a prima facie pattern or practice case of employment discrimination under the ADA. The United States demonstrated through undisputed facts that: (a) Defendants are covered entities under title I of the ADA; (b) Defendants' policyor practice is undisputed; and (c) Defendants' policy or practice discriminates against "qualified individuals with disabilities." Defendants have not rebutted the United States' prima facie case. 1. The United States Need Not Demonstrate That Each Individual On Whose Behalf It May Ultimately Seek Relief Is A "Qualified Individual With A Disability" In Order To Prevail On Its Motion For Summary Judgment On Liability As they did in their motion for clarification of this Court's order bifurcating the 3 This is particularly true since Defendants do not dispute any of the facts presented in the United States' Statement of Undisputed Facts. See United States' Reply Concerning Disputed and Undisputed Facts (attached as Appendix A). -2- United States' Title I case for discovery and trial, Defendants argue that the United States must, at the liability stage of this bifurcated trial, demonstrate that those individuals on whose behalf relief may ultimately be sought are actually "qualified individuals with disabilities." See Def. Opp. at 5-8. In support of their position, they cite White v. York Int'l Corp., 45 F.3d 357(10th Cir. 1995), and other cases involving individual claims of discrimination under either the ADA or the Rehabilitation Act of 1973. These cases, however, are inapposite here, as they do not establish the United States' burden of proof at the liability phase of a case alleging a pattern or practice of discrimination. In International Bhd. of Teamsters v. United States, 431 U.S. 324(1977), the Supreme Court rejected the argument that the model set out in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), for allocating burdens of proof in individual discrimination cases brought under Title VII of the Civil Rights Act, 42 U.S.C. S 2000e et seq., should apply strictly in Title VII "pattern or practice" cases. See Teamsters, 431 U.S.at 357-58. The Teamsters Court stated that its prior decision in McDonnell-Douglas, "did not purport to create an inflexible formulation. We expressly noted that '(t)he facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required from (a plaintiff) is not necessarily applicable in every respect to differing factual situations.'" Id. at 357 (quoting McDonnell-Douglas, 411 U.S. at 802 n.13). Following Teamsters, the Tenth Circuit has been careful to distinguish between the burdens of proof of individual plaintiffs in Title VII cases and the United States' burden of proof in "pattern or practice" cases. For example, in Coe v. Yellow Freight Sys., Inc., 646 F.2d 444 (10th Cir. 1981), the Court described the differences as follows: In a true "pattern and practice" suit, the government is not required to show individual discrimination with respect to each person for whom it seeks relief when establishing its prima facie case. In seeking to protect the public's interest, it is sufficient that the government show specific evidence of company discrimination regarding some of the employees that it seeks to represent, and that the government establish that a broad-based policy of employment discrimination existed. The latter factor provides sufficient grounds to create a -3- prima facie inference that individual hiring decisions were made in pursuit of the general discriminatory policy. Id. at 648 n.1 (citations omitted). Since, as we have previously pointed out, Title I of the ADA adopts Title VII's powers, remedies, and procedures, the Court should look to Teamsters and cases following it when determining the United States' burden of proof at the liability phase of this case. See Appendix B at 2. Teamsters makes it clear that the method for allocating burdens of proof in individual discrimination cases under Title VII do not apply in "pattern or practice" cases. Likewise, White v. York Int'l Corp., supra, and the rest of the cases cited by Defendants do not establish the United States' burden of proof at the liability phase of pattern or practice cases of discrimination.4 The United States has presented ample evidence to support its motion for summary judgment on liability. Defendants have an undisputed policy of refusing to offer disabled police officers reassignment to civilian positions within the DPD or in the Career Service, even as a "reasonable accommodation" under Title I. See SJ Mem. at 2. See also Appendix B at 6 & n.5. Evidence of a stated policy that flatly contradicts Defendants' obligation under Title I should alone be sufficient to establish liability.5 The United States, however, 4 As noted in our response to Defendants' motion for clarification of the bifurcation order, we do not quarrel with the assertion that the United States has the burden of demonstrating that those individuals on whose behalf it will ultimately seek relief in a Title I "pattern or practice" case are "qualified individuals with disabilities." We disagree only as to the point in time at which this must be done. Proof of an individual's status as a "qualified individual with a disability" is part of what must be shown to establish membership in the group of those affected by the discriminatory policy. This showing, however, is part of the "remedial" stage of a bifurcated "pattern or practice" case. See Appendix B at 8 n.7. 5 Surely, if a covered entity had a policy that stated, "Persons with disabilities need not apply," the policy's mere existence would be sufficient to establish liability for a "pattern or practice" of discrimination under Title I. Yet according to Defendants' theory, the United States would still need to demonstrate that "qualified individuals with disabilities" were (continued...) -4- presented more evidence than the policy's existence. It has offered evidence showing how the policy operated to deny reassignment to Jack Davoll, a "qualified individual with a disability." See SJ Mem., at 11-12; see also SJ Mem., App. A, Fact Nos. 31-44. 2. Reassignment Is A "Reasonable Accommodation," Not "Affirmative Action" Title I clearly states that "reasonable accommodation" under the ADA includes "reassignment to a vacant position." 42 U.S.C. S 12111(9)(B).6 See also 29 C.F.R. S 1630.2(o)(2)(ii). Defendants suggest, however, that in the present case, reassignment of police officers who become disabled to civilian positions constitutes "affirmative action," because such reassignment is not offered to non-disabled officers. See Def. Opp. at 4-5, 11- 12. Defendants' characterization of reassignment as "affirmative action" proceeds from a fundamental misunderstanding of that term's meaning. As we pointed out in our opening 5 (...continued) actually harmed in order to establish liability for such a blatant policy. Moreover, under Defendants' theory, the rationale behind bifurcation (namely, large savings of costs and resources) would be severely undermined in Title I "pattern or practice" cases, since all of the evidence that would otherwise be presented only at the "remedial" stage would need to be offered to establish liability. 6 The statute states: The term "reasonable accommodation" may include: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. See 42 U.S.C. S 12111(9) (emphasis added); see also 29 C.F.R. app. S 1630.2(o) at 406-08. -5- brief, "[a]ffirmative action refers to a 'remedial policy for the victims of past discrimination.' The term reasonable accommodation relates to the 'elimination of existing obstacles against the handicapped.'" SJ Mem. at 10 n. 12 (citing Alexander v. Choate, 469 U.S. 287, 300 n.20 (1985)).7 Defendants appear to confuse "affirmative action" with an affirmative act. While the term "affirmative action" does not appear in the statute, the ADA does require entities to take "affirmative acts" on behalf of individuals with disabilities.8 Indeed, the concept of "reasonable accommodation" requires that employers take actions on behalf of disabled employees - such as making portions of worksites accessible, modifying equipment, or providing qualified sign language interpreters or readers - that need not be taken on behalf of others. Defendants' interpretation would make a nullity of this key ADA mandate.9 7 In Southeastern Community College v. Davis, 442 U.S. 397 (1979), the Supreme Court appeared to use the term "affirmative action" to mean any accommodation that would result in either a fundamental alteration in the nature of a program or in an undue burden and that would, therefore, not be required under Section 504 of the Rehabilitation Act of 1973. Defendants' "no-reassignment" policy does not constitute "affirmative action" as that term was used in Davis. See SJ Mem. at 13-19 (demonstrating that reassignment would not impose an undue hardship on Defendants). See also infra part II.B. 8 Defendants' repeated claims that the ADA is "not an affirmative action plan" also confuses the issue because of the various imprecise meanings that the term has taken on in the popular lexicon. See Alexander v. Choate, 469 U.S. 287, 300 n.20 (1985). 9 The ADA's requirement that employers provide reasonable accommodations to employees with disabilities is one of the ways in which the ADA insures equal employment opportunity for persons with disabilities. If Defendants are correct that reassignment must be offered to employees with disabilities if, and in the same manner as, it is offered to non- disabled employees, then there would have been no reason to include reassignment in the statute and in the Title I regulation as a form of "reasonable accommodation." Congress thus recognized that reassignment, like the modification of a worksite or equipment, is an action which an employer may be required to take for an individual with a disability in some circumstances, even if it does not do so for non-disabled employees. We do not mean to suggest, however, that the obligation to offer reassignment is limitless. Like the obligation to provide any form of "reasonable accommodation," it is limited by the concepts of "undue (continued...) -6- 3. Employees Need Not Be Qualified To Perform The Essential Functions Of The Positions For Which They Were Originally Hired To Be Eligible For Reassignment To Other Positions For Which They Are Qualified Defendants claim that an individual who can no longer perform the essential functions of the job for which he or she was hired - due to disability - is not protected by the ADA. See Def. Opp. at 8-10. Defendants' interpretation of the ADA reads right out of the statute the language of Title I that specifically mentions reassignment as a form of "reasonable accommodation." See supra part I.A.2 & n.10. This statutory obligation would have no meaning if it applied only to those individuals who met the essential functions of the job they were occupying. Indeed, if employees could meet the essential functions of the job they were performing, they would not need reassignment as an accommodation. The statute and the regulation make clear that when an accommodation in an employee's present position is not possible, reassignment to another position must be considered as a reasonable accommodation. See discussion in SJ Mem. at 6-12.10 Defendants cite Champ v. Baltimore County, 884 F. Supp. 991 (D. Md. 1995), for 9 (...continued) hardship." See 42 U.S.C. S 12112(a)(5)(A); 29 C.F.R. S 1630.9(a). Additionally, the position to which an employee with a disability is reassigned as a "reasonable accommodation" need only be equal in terms of pay and status. Employers need not create a position or promote employees with disabilities as a "reasonable accommodation." See 29 C.F.R. App. S 1630.2(o) at 408. See also Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) (city not required to reassign part-time employee to full-time position), cert. denied, 116 S. Ct. 1263 (1996). 10 Importantly, the language in the ADA regarding reassignment reflects a change from the language in the regulations implementing the Rehabilitation Act of 1973, 29 U.S.C. S 701 et seq., from which the ADA evolved. See SJ Mem. at 8 n.10. Courts have routinely recognized reassignment as a form of reasonable accommodation. See cases cited in SJ Mem. at 8-9. Further, Committee reports make clear Congress's intent that the ADA explicitly protects the worker who, because of disability, can no longer perform the job for which he or she was hired. See SJ Mem. at 6-8. -7- the proposition that an employee who cannot perform the essential functions of a police officer is not a "qualified individual with a disability." Defendants' argument confuses the issue. The plaintiff in Champ did not seek reassignment to jobs outside the police force for which he was qualified.11 The situation in the instant case is very different. Unlike in Champ, many positions in the DPD are classified as civilian (Career Service) positions, and do not require the ability to effect a forcible arrest or shoot a weapon. 12 Here, the complainants sought or would have sought reassignment to civilian positions for which they were qualified. B. DEFENDANTS CANNOT ESTABLISH THE AFFIRMATIVE DEFENSE OF "UNDUE HARDSHIP" 1. Permitting Officers With Disabilities To Transfer To Career Service Positions For Which They Are Qualified Is A Reasonable Change In Defendants' Regular Reassignment Policy In its motion for summary judgment, the United States cited undisputed facts establishing that the City and County of Denver maintains a two-tier system for its employees with disabilities. Civilian employees who develop disabilities have the benefit of a special disability transfer policy, allowing them to transfer to a wide variety of jobs for which they are qualified. In contrast, police officers who develop disabilities - some due to injuries suffered in the line of duty - are not permitted to transfer to civilian (Career Service) jobs. Instead, these officers must either compete for jobs as though they are brand-new applicants 11 In Champ, the plaintiff requested only that he stay on the police force in a light duty position. Since the Baltimore County Police Department required all of its patrol and non-patrol positions to be filled by police officers who could make a forcible arrest, drive a vehicle under emergency conditions, and qualify with a weapon, and Champ could not perform these functions, Champ's request for reassignment to a non-patrol position was rejected as an unreasonable accommodation. 12 The complainants' ability or inability to perform the essential functions of patrol officers as they have been defined by the DPD is not at issue in U.S. v. City and County of Denver, C.A. No. 96-K-370. The cases cited in Defendants' Opposition at 9 are thus inapposite. -8- for City employment, or retire. SJ Mem. at 1-3. Defendants contend that allowing police officers with disabilities to transfer to Career Service vacancies for which they are qualified would require the City to "completely modify its existing personnel system," and thus constitutes a fundamental alteration resulting in undue hardship. But Defendants never explain how the transfer of four officers a year into a 9,500 employee organization could possibly require the City to "completely modify" its personnel systems. Indeed, Defendants provide no information whatsoever regarding the effect this transfer would have upon the operation of their personnel systems.13 The only argument offered by Defendants regarding the impact of transferring police officers with disabilities is that it would somehow affect the Career Service's "merit system." Defendants contend that Career Service employees "rely upon the meritocracy to ensure 13 The only defense available to a reasonable accommodation claim is "undue hardship," which Defendants cannot establish. Under the ADA, "undue hardship" is "an action requiring significant difficulty or expense." 42 U.S.C. S 12111(10)(A). Undue hardship "refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business." 29 C.F.R. App. S 1630.2(p) at 408. It is difficult to see how the reassignment of police officers with disabilities would have any appreciable impact upon the operations of the City's personnel systems, since the City already has a regular practice or policy of reassignment; both the Career Service and Classified Service personnel systems have transfer policies that allow non-disabled employees to transfer to other positions of the same or similar classifications. See SJ Mem. at 2-3. Defendants admit that they have never actually assessed or studied the costs or burdens of the accommodation at issue here. SJ Mem., App. A, Fact Nos. 53-62. To the extent these can be estimated, however, the undisputed facts show the administrative and financial costs to be negligible. Id. Fact Nos. 51-62. In light of the size of Defendants' budget ($500 million), the potential cost of modifying Defendants' policy to permit the reassignment of officers with disabilities to Career Service vacancies is de minimis. This is particularly true since the number of positions that would be affected by a change in the DPD's reassignment policy is small - Defendants employ nearly 12,000 individuals in facilities located all over the Denver metropolitan area, and the number of officers who apply for disability retirement averages only four (4) officers per year. SJ Mtn., App. A, Fact Nos. 8, 16-17. -9- fairness." Def. Opp. at 12. But Defendants do not explain how the transfer of police officers would undermine this "meritocracy." As the United States argued in its opening brief, officers with disabilities seeking reassignment under the ADA need be reassigned only to jobs for which they are qualified. See SJ Mem. at 18. Further, although applicants new to City employment must complete entrance examinations and interview assessments in order to be ranked and placed on a "certification list," the hiring agency need not hire the highest ranking applicant, or indeed, anyone on the list. It could, for example, fill the position with a transferee, or someone seeking reemployment. Defendants admit that there exist no criteria governing how hiring decisions are ultimately made, and that there is no tracking or monitoring by the Career Service of decisions by hiring agencies. SJ Mem., App. A, Fact Nos. 88-92. Even more importantly, the entry requirements for officers are just as, if not more rigorous than, entry requirements for Career Service jobs of similar status and pay.14 Defendants also claim that, "the City is not obligated to reassign plaintiffs to non- police positions on the City payroll unless the City reassigns non-disabled police officers to non-police jobs on the City payroll." Def. Opp. at 11.15 Defendants seem to believe that, so long as they enforce their policy of prohibiting reassignment across personnel systems 14 Defendants attempt to argue that the rights of Career Service employees should be equated with those of employees under collective bargaining agreements, and that caselaw involving these agreements should be applied to the instant case. But this is not a case involving a collective bargaining agreement, and the interests of Career Service employees cannot be equated with the interests of the employees in the cases cited in Defendants' Opposition at 12. As stated, Career Service rules do not require hiring agencies to select the top candidate, or any candidate, from the eligibility lists for Career Service positions certified by the Career Service Authority. 15 Defendants cite Emrick v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 397 (E.D. Tex. 1995) for the proposition that the City is required to reassign qualified individuals with disabilities to vacant positions if, and only if, the City has a regular practice or policy of reassigning non-disabled employees to other positions. To the extent Emrick can be read to support this proposition, the United States believes it to be wrongly decided. -10- 402074 against employees with as well as without disabilities, they have complied with the ADA. Defendants are wrong. The whole reason and purpose behind the ADA's obligation to provide reasonable accommodations is to ensure that employers take actions on behalf of disabled employees - such as making portions of worksites accessible, modifying equipment, providing qualified sign language interpreters or readers, or reassigning employees with disabilities -- that need not be taken on behalf of others. Under Defendants' interpretation of the law, an employer could evade its responsibility to provide reasonable accommodations, including reassignment, simply by having an "existing policy" that does not permit such actions to be taken on behalf of non-disabled individuals. Defendants' interpretation would make a nullity of the ADA's inclusion of reassignment as a form of reasonable accommodation. If reassignment is only required where a reassignment policy already exists for all employees, there would be no need for the ADA to require that it be provided for employees with disabilities.16 As the United States discussed in its opening brief, reassignment as a means of reasonable accommodation is more than making the usual opportunities available on a nondiscriminatory basis; it requires a change in the usual policy where doing so is "reasonable."17 See SJ Mem. at 6-10. 16 The statutory language including reassignment as a form of reasonable accommodation must be given effect. As Defendants state in their Opposition: "In construing statutory language, it is presumed that the words of a statute were included for a purpose. Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 975 (4th Cir. 1993), cert. denied, 11 S.Ct. 1540 (1994). ...It is well settled that all words and provisions of statutes are intended to have meaning and are to be given effect. Def. Opp. at 10 (citation ommitted). Defendants cite to these canons of statutory construction to argue that the use of the word "may" in the statute means that reasonable accommodation will not always include transfer to a vacant position. That is correct. The obligation to offer reassignment is not limitless. See supra part II.A.2 & n.9. 17 Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 542-43 (7th Cir. 1995) ("It is plain enough what 'accommodation' means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable (continued...) -11- 402075 III. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court grant the United States' Motion for Summary Judgment on Liability Under Title I In Civil Action No. 96-K-370. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division By: L. IRENE BOWEN EUGENIA ESCH SHEILA M. FORAN CHRISTOPHER J. KUCZYNSKI Attorneys U.S. Department of Justice Civil Rights Division Disability Rights Section P.O. Box 66738 Washington, D.C. 20035-6738 17(...continued) a disabled individual to work."); see also Beck v. University of Wisc. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996); Leslie v. St. Vincent New Hope, Inc., 916 F. Supp. 879, 887 (S.D. Ind. 1996) (the ADA may require reassignment even if the employer does not have a regular policy or practice of permitting non-disabled employees to transfer). -12- 402076 CERTIFICATE OF SERVICE I, Sheila Foran, hereby certify that the foregoing United States' Reply to Defendants' Opposition to the United States' Motion for Summary Judgment On Liability Under Title I in Civil Action No. 96-K-370, and the United States' Reply Concerning Disputed and Undisputed Facts were served on September 26, 1996, by facsimile transmission and overnight express mail delivery, on the following counsel: J. Wallace Wortham, Jr., Esq. Wayne E. Vaden, Esq. Grace Fell Regan, Esq. Assistant City Attorneys Department of Law Office of City Attorney Annex I - 303 1445 Cleveland Place Denver, CO 80202 (by hand delivery on September 27, 1996) David C. Feola, Esq. 315 East Florida Avenue Denver, CO 80210 Marilee Langhoff, Esq. 6628 South Marion St Littleton, CO 80121 By: SHEILA M. FORAN Attorney U.S. Department of Justice Civil Rights Division Disability Rights Section P.O. Box 66738 Washington, D.C. 20035-6738 402077 APPENDIX A APPENDIX A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO C.A. NOS. 96-K-370 & 93-K-2263 UNITED STATES OF AMERICA, ) ) JACK L. DAVOLL; DEBORAH A. CLAIR; ) and PAUL L. ESCOBEDO ) ) Plaintiffs, ) ) v. ) ) THE CITY AND COUNTY OF ) DENVER; THE DENVER POLICE ) Hon. John L. Kane Jr. DEPARTMENT; and THE CIVIL ) SERVICE COMMISSION FOR THE ) CITY AND COUNTY OF DENVER, ) ) Defendants. ) ) UNITED STATES' REPLY CONCERNING DISPUTED AND UNDISPUTED FACTS I. Reply Concerning Undisputed Facts Defendants do not dispute any of the facts in the United States' Statement of Undisputed Facts, filed concurrently with its Motion for Summary Judgment and memorandum in support thereof ("SJ Mem."). Therefore, these facts are to be accepted as admitted.1 1 See Judge Kane's Pretrial and Trial Procedures at 18, Special Instructions Concerning Motions for Summary Judgment ("Court's Instruction"), Instruction No. 4 directs as follows: (continued...) 402078 II. Response Concerning Disputed Facts As stated in Note 1, supra, Defendants have not admitted or denied the facts in the United States' Statement of Undisputed Facts. Instead, Defendants have set out "Undisputed Facts" of their own. Although the United States denies all of Defendants' Undisputed Facts, the facts are not material and thus present no bar to summary judgment in favor of the United States.2 1 (...continued) Any party opposing the motion for summary judgment shall, in a section of the brief required by rule 7.1F of the United States District Court for the District of Colorado Local Rules of Practice styled "Response to Statement of Undisputed Material Facts," admit or deny the asserted material facts set forth by movant. The admission or denial shall be made in paragraphs numbered to correspond to movant's paragraph numbering. Any denial shall be accompanied by a brief factual explanation of the reason(s) for the denial and a specific reference to material in the record supporting the denial. Id. (emphasis added). Defendants' failure to contest the facts set out in the United States' Statement of Undisputed Facts should be construed as an admission of those facts. In the alternative, Defendants' Opposition should be stricken. See Court's Instruction No. 9. 2 Under the Court's Instructions, Defendants are permitted only to set out additional disputed questions of fact -- not undisputed facts: If the party opposing the motion believes that there exist additional disputed questions of fact which he has not adequately addressed in the submissions he has made pursuant to paragraph VII, 4 (for example, disputed facts concerning an affirmative defense), the party shall, in a separate section of the party's brief styled "Statement of Additional Disputed Facts," set forth in simple, declarative sentences, separately numbered and paragraphed, each additional, material disputed fact which undercuts movant's claim that he is entitled to judgment as a matter of law. Each separately numbered and paragraphed fact shall be accompanied by a specific reference to material in the record which establishes the fact or at least demonstrates that it is disputed. (continued...) -2- Defendants' Undisputed Fact No. 13 The U.S. denies this fact. Subpart A: "The Denver City Charter provides for the Career Service Authority and outlines who is part of that system." The U.S. admits this subpart. Subpart B: "A police officer is not an employee of the Career Service Authority." The U.S. admits this subpart. Subpart C: "The rules of the career service system and the city charter as it establishes the career service system preclude transfer from the civil service system directly into the career service system." The U.S. denies this subpart. Defendants have provided no basis or citation for this proposition. See SJ Mem., Undisputed Fact No. 22 ("The Charter does not affirmatively state that officers may not transfer into Career Service positions, but the absence of a provision to that effect has been interpreted as a prohibition to such transfers. Cooper 7/29/96 at 87/13-17, 88/7-13, Attachment 10; Timmerman at 92/14-25, Attachment 4.")4 2 (...continued) Court's Instruction No. 5 (emphasis in original). Since there is no provision in the Court's Instruction for a non-movant to propose undisputed facts, there is likewise no provision governing the movant's response. We have nevertheless attempted to apply the Court's instructions to this situation, and therefore address Defendants' Facts by admitting and denying them pursuant to Court's Instruction No. 4. See supra at 1 & n.1. 3 Defendants' "Undisputed Facts" each contain several subparts. We have listed the subparts separately to make clear the basis for our response. 4 All citations to "Attachments" refer to Attachments to the United States' Motion for Summary Judgment on Liability Under Title I in Civil Action No. 96-K-370. -3- Defendants' Undisputed Fact No. 2 The U.S. denies this fact. Subpart A: "The City and County of Denver's Career Service Authority is a merit-based system. Appointments are to be made based on merit and fitness to perform the work." The U.S. denies this subpart. See SJ Mem., Undisputed Fact No. 90-92: "90. There are no Career Service rules requiring an agency head to interview applicants certified by the Career Service Authority as eligible to be hired. Watts 8/1/96 at 62/13-20, 27/7-25, 26/1-24, Attachment 17. 91. Other than a bar against hiring relatives, there are no Career Service rules governing how an agency head selects an applicant from the list of candidates certified by the Career Service Authority as eligible to be hired. Watts 8/1/96 at 62/13-20, 26/ 8-24, 27/19-24, 28/20-23, Attachment 17; Timmerman 7/30/96 at 94/13-17-22, Attachment 4. 92. The hiring agency may use any criteria to select an applicant from the list of applicants certified by the Career Service Authority. Timmerman 10/30/95 at 15/8- 25, Attachment 3." Subpart B: "Career Service Authority tries to find the best qualified candidates for every vacancy." The U.S. denies this subpart: Defendants have provided no basis for a conclusion regarding the Career Service Authority's attempts to find the best qualified candidates for every vacancy. Subpart C: "To circumvent that process is a violation of the charter." The U.S. denies this subpart. See above responses to Defendants' Fact 1, Subpart C, and Defendants' Fact 2, Subpart A. -4- Defendants' Undisputed Fact No. 3 The U.S. denies this fact. Subpart A: "New applicants and applicants for promotions are required to go through an examination process in order to show that they are able to perform the job for which they are applying. The applicants must then go through an assessment interview. When the examinations and assessments are done, Career Service Authority certifies a list of applicants to the agency. Incumbency does not give an employee any "points" when applying for a new job or promotion." The U.S. admits these subparts. Subpart B: "Everyone who receives a Career Service position must go through the same process." The United States denies this subpart. See SJ Mem., Undisputed Fact No. 27 ("Career Service employees in the DPD can be reassigned or transferred to an equivalent classification or pay grade in the Career Service as long as they possess the necessary qualifications."). See also Defendants' Opposition to Plaintiff the United States' Motion for Summary Judgment and Brief In Support Exhibit A at 34/3 - 35/17 (Career Service transferees, unlike entry-level or promotional Career Service applicants, need not take examinations, undergo assessment interviews, or be placed on certification lists to obtain new Career Service positions in the same pay grade.) -5- Defendants' Undisputed Fact No. 4 The U.S. denies this fact. Subpart A: "Allowing police officers to transfer into vacancies in the Career Service would affect recruitment because applicants would learn that after spending time in the recruitment process, police officers could take the vacancies away from them as those applicants would not be certified as qualified to the Agency, and the position would be lost to the Career Service System. That does not happen when a Career Service employee transfers into a position, because that transfer creates a new vacancy in the Career Service that a police officer transfer does not likewise create." The U.S. denies these subparts. See SJ Mem., Undisputed Fact Nos. 54, 58, 59, 61, 63, 64: "54. No analysis or feasibility studies have been done of the impact, if any, on the Career Service system were officers allowed to transfer into Career Service vacancies. Timmerman 7/30/96 at 80/14-17, Attachment 4; Watts 8/11/96 at 83/4-25, 84/1-25, 85/1-7 Attachment 17. 58. No analysis has been done on the impact on Career Service operations were officers allowed to transfer into Career Service vacancies. Watts 8/1/96 at 83/4-25, 84/1-25, 85/13-15, Attachment 17. 59. No analysis has been done of the impact on the administration of the Career Service were officers allowed to transfer into Career Service vacancies. Watts 8/1/96 at 83/4-25, 84/1-25, 85/1-7, Attachment 17. 61. Ms. Watts is not aware of any studies which examine the impact, if any, of allowing the transfer of a patrol officer with disabilities to the Career Service. Watts 8/1/96 at 90/22-25, 91/1-5, Attachment 17. 63. The Career Service Authority has "no idea" how many officers with occupational disabilities would seek transfers to Career Service positions, annually, if the City were to allow such transfers. Watts 8/1/96 at 95/18-25, 96/1-22. Timmerman 7/30/96 at 79/21-25, 80/1-5, Attachment 4. 64. An average of four (4) officers retire on occupational disability annually. Cooper 7/30/96 at 141/18-24, Attachment 5." -6- Subpart B: "Also, Career Service rules provide for examining all candidates and establishing lists, ranking and certifying from those lists and if police were allowed to transfer in, it would not fit into the picture. Moreover, it would affect layoff rights of Career Service employees." The U.S. denies this subpart. Defendants have provided no information regarding how "if police were allowed to transfer in, it would not fit into the picture," or how layoff rights of Career Service employees would be affected by allowing officers to transfer. See also SJ Mem., Undisputed Fact Nos. 54, 58, 59, 61, 63, 64, quoted above. -7- APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO C.A. NOS. 96-K-370 & 93-K-2263 UNITED STATES OF AMERICA, ) ) JACK L. DAVOLL; DEBORAH A. CLAIR; ) and PAUL L. ESCOBEDO, ) Plaintiffs, ) ) v. ) ) ) THE CITY AND COUNTY OF ) DENVER; THE DENVER POLICE ) Hon. John L. Kane Jr. DEPARTMENT; and THE CIVIL ) SERVICE COMMISSION FOR THE ) CITY AND COUNTY OF DENVER, ) ) Defendants. ) ) UNITED STATES' MEMORANDUM IN OPPOSITION TO DEFENDANTS' MOTION FOR CLARIFICATION OF BIFURCATION ORDER I. BACKGROUND On June 25, 1996, the United States' claim under 42 U.S.C. S 12117(a) in the above-referenced case was bifurcated for discovery and trial. Presently before the Court is defendants' motion for clarification of that order. Defendants argue that the United States must demonstrate, during the liability phase of the bifurcated trial, that each individual on whose behalf it intends to seek relief is a "qualified individual with a disability."1 1 Defendants' present position appears to be a complete reversal of the position they took in their motion for (continued...) The question of what the United States must prove during the liability phase of a "pattern or practice" case brought pursuant to Title I of the Americans with Disabilities Act ("Title I" or "ADA") is one of first impression. However, S 107(a) of the ADA, 42 U.S.C. S 12117(a), adopts the powers, remedies, and procedures applicable to Title VII of the Civil Rights Act of 1964, 42 U.S.C. SS 2000e et seq., including the right of the United States to institute actions alleging a pattern or practice of employment discrimination. See 42 U.S.C. S 2000e-6. In the absence of any case law interpreting Title I, then, this Court should look for guidance to "pattern or practice" cases arising under Title VII. Defendants' position is not supported by those cases.2 Defendants' position is also at odds with language on class certification in Judge Kane's order dated June 7, 1996, denying defendants' motion to dismiss. Finally, requiring the United States to prove during the liability phase of the bifurcated 1(...continued) reconsideration of the order consolidating the United States' action with that of private plaintiffs and bifurcating the United States' Title I claim. There defendants distinguish between the United States' bifurcated Title I claim and the private suit on the ground that, "in the U.S.'s bifurcated liability case, there is an assumption approach to the QID status whereas in the Davoll case, the question of QID status is hotly contested and must be proved by the plaintiffs." Def. Motion for Reconsideration of Order to Consolidate Trials and Bifurcate Trial of 96-K-170 and Brief in Support at 4. 2 Also relevant is case law interpreting the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. SS 621 et seq., since that statute allows the Equal Employment Opportunity Commission to pursue "pattern-or-practice" cases. Courts use the Title VII model for allocating burdens of proof in ADEA "pattern- or-practice" cases. 29 U.S.C. S 262(b). See generally EEOC v. Sandia Corp., 639 F.2d 680 (10th Cir. 1980). 2 trial that each person on whose behalf relief might possibly be sought is a "qualified individual with a disability" would thwart the purpose of bifurcation in this case and, indeed, in any "pattern or practice" case arising under Title I. For all of these reasons, defendants' motion must be denied.3 II. ARGUMENT A. COURTS HAVE NOT REQUIRED THE UNITED STATES TO PRODUCE EACH INDIVIDUAL ON WHOSE BEHALF IT MAY ULTIMATELY SEEK RELIEF DURING THE LIABILITY PHASE OF A CASE INVOLVING AN ALLEGED PATTERN OR PRACTICE OF EMPLOYMENT DISCRIMINATION. In International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977), the Supreme Court clearly articulated the United States's burden of proof at the liability and remedial stages of a bifurcated "pattern or practice" case brought pursuant to S 707(a) of Title VII, 42 U.S.C. S 2000e-6.4 Teamsters requires the United States to carry the initial burden of making out a prima facie case of discrimination. To do this it must establish, by a preponderance of the evidence, "that . . . discrimination [is] the company's standard operating procedure -- the regular rather than the unusual practice." Id. at 336. See 3 Additionally, defendants represent that "[t]he Court's determination of this matter is necessary before proper jury instructions can be drafted." Defendants' Motion for Clarification of Bifurcation Order (hereafter "Def. Motion") at 3. The United States' claims under Title I of the ADA, however, will be tried to the court, not to a jury. 4 In their motion, Defendants mischaracterize Teamsters as a class action. There was no "certified class" in Teamsters. See Def. Motion at 2-3. 3 also Pitre v. Western Elec. Co., Inc., 843 F.2d 1262, 1267 (10th Cir. 1988), cert denied, 510 U.S. 972 (1993) (applying this same standard to private plaintiffs in a class action suit alleging gender discrimination); EEOC v. Sandia Corp., 639 F.2d 600, 621- 22 (10th Cir. 1980) (Teamsters standard applies in "pattern or practice" case brought pursuant to the ADEA). It does not follow, however, that the United States must present during the liability phase each individual on whose behalf relief may ultimately be sought. Indeed, Teamsters rejected this approach, stating that "[a]t the initial 'liability' stage . . . the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy." Id. at 360. In fact, Teamsters acknowledged that a pattern or practice of discrimination will usually not be proved "by examining the discrete decisions of which it is composed," but instead will "involve[s] proof of the expected result of a regularly followed discriminatory policy." Id. n.46. The United States may present various forms of evidence to show a pattern or practice of discrimination at the liability phase of a bifurcated trial. Statistics showing that members of a protected class have either been treated differently by an employer or have been subjected to a policy that, although neutral on its face, has a disparate impact upon them, are frequently used in "pattern or practice" case; however, they clearly are not necessary to establish a prima facie case of 4 discrimination. See Pitre, 843 F.2d at 1267 (citing Teamsters, 431 U.S. at 339-40). A prima facie case may be made out by "a cumulation of evidence." See EEOC v. American Nat'l Bank, 652 F.2d 1176, 1189 (4th Cir. 1981), cert. denied, 459 U.S. 923 (1982). This could include, in addition to statistics, evidence of individual instances of discrimination, see Pitre 843 F.2d at 1267-68; American Nat'l Bank, 652 F.2d at 1176, or "patterns, practices, [or] general policies." American Nat'l Bank, 652 F.2d at 1176. The United States can certainly produce sufficient evidence at the liability stage of this case to establish that defendants have engaged in a pattern or practice of discrimination against qualified individuals with disabilities without offering each person for whom relief might ultimately be sought. As explained in the United States' memorandum supporting its motion for summary judgment on liability under Title I, the ADA requires that defendants make "reasonable accommodations" for qualified individuals with disabilities whom they employ. See 42 U.S.C. S 12112(5)(A); United States' Memorandum in Support of Its Motion for Summary Judgment on Liability Under Title I in Civil Action No. 96-K-370 (hereafter "U.S. Mem.") at 6. Reassignment to a vacant position is specifically mentioned in the statute and in the EEOC regulation implementing Title I as a form of "reasonable accommodation." 42 U.S.C. S 12111(9)(B); 29 C.F.R. S 1630.2(0)(2)(ii). See also U.S. Mem. at 6-8. 5 At the liability stage, the United States need only demonstrate that defendants have pursued a discriminatory policy. Defendants admit that they have a policy that expressly prohibits reassignment of police officers to Career Service or non-sworn (civilian) positions within the Denver Police Department ("DPD") or elsewhere in the City.5 Thus, police officers who become disabled during their employment can neither retain their employment in those positions, nor be re-assigned to the Career Service. Defendants' admission is sufficient to establish a "pattern or practice" of discrimination, because discovery has revealed and the evidence adduced at trial will show that no "undue hardship" would be incurred if the present policy prohibiting reassignment were modified as a reasonable accommodation for "qualified individuals with disabilities." See 42 U.S.C. S 12112(5)(A). See U.S. Mem. at 1 n.3 (quoting United States v. Gregory, 871 F.2d 1239, 1243 (4th Cir. 1989)); id. at 2, 12-19. 5 Defendants' stated policy is that reassignments or transfers to Career Service positions within or outside the DPD are not available to any officers injured in the line of duty. U.S. Mem., Appendix A, Attachment 7. Defendants admit that there are no policies or procedures providing for the transfer or reassignment of officers with disabilities to positions in the Career Service. Defendants' Amended Response to Interrogatories, Request for Production of Documents [and] Requests for Admissions to Defendants, Davoll v. Webb, et. al., Civil Action No. 93-K-2263, Admission No. 6; U.S. Mem., Appendix A, Attachment No. 9; U.S. Mem., Appendix A, Attachment 10 at 9/8-20. 6 In addition, however, the United States intends to present specific evidence of how Jack Davoll was affected by defendants' discriminatory policy, which will include proof of his status as a "qualified individual with a disability." Evidence of discrimination against Davoll, coupled with defendants' admitted policy, which flatly contradicts Title I's requirements, will certainly establish the United States' prima facie case of discrimination.6 B. DEFENDANTS' RELIANCE UPON THE OPINION DENYING CLASS CERTIFICATION IN DAVOLL I IS MISPLACED. Defendants believe that this court's opinion in Davoll v. Webb, 160 F.R.D. 142 (D. Col. 1995) (Davoll I), supports their position. There the Court declined to certify a class of individuals with disabilities pursuant to Fed. R. Civ. P. 23, in part because of the individualized inquiry necessary to demonstrate that each member of the putative class is a "qualified individual with a disability." See Davoll I, 160 F.R.D. at 146. The language from the opinion that defendants quote in their motion, however, is inapposite here. In its June 7, 1996, opinion and order denying defendants' motion to dismiss the United States' claims under Title I and Title II of the ADA, this Court explicitly recognized that the rules applicable to class 6 In Davoll v. Webb et al., C.A. No. 93-K-2263, counsel will present, in addition to testimony concerning Jack Davoll, two other former police officers who were forced to take disability retirement -- Deborah Clair and Paul Escobedo. 7 certification under Fed. R. Civ. P. 23 do not apply in "pattern or practice" cases brought by the United States. United States v. City and County of Denver, 927 F. Supp. 1396, 1401 (D. Col. 1996). Indeed, the Court recognized that such cases may be brought even without a particular named complainant. Id. at 1398, 1401.7 C. REQUIRING THE UNITED STATES TO PRODUCE AT THE LIABILITY STAGE ALL OF THE PERSONS ON WHOSE BEHALF IT MAY POTENTIALLY SEEK RELIEF AND DEMONSTRATE THAT EACH IS A "QUALIFIED INDIVIDUAL WITH A DISABILITY" WOULD UNDERMINE THE PURPOSE BEHIND BIFURCATION. In an earlier memorandum, the United States explained in some detail the rationale for bifurcation in "pattern or practice" suits brought under Title I. We explained that "when dispositive issues (such as liability) are tried first, opportunity exists to save both the parties and the Court the time and expense associated with the proof and trial of all of the separate individual relief issues." Plaintiff United States' 7 The United States does not quarrel with defendants' view that a highly individualized assessment is necessary in order to determine a potential victim's status as a "qualified individual with a disability." We also acknowledge that the United States must show that each person on whose behalf it is seeking relief is, in fact, a "qualified individual with a disability." We simply disagree with defendants about the point in time at which this showing must be made. Evidence that a particular person is a "qualified individual with a disability" is necessary to establish that such person is among those individuals for whom relief may be sought. But the issue of whether particular persons are in fact members of the class of victims of discrimination is always resolved at the remedial stage of a bifurcated action, not at the liability stage. See Teamsters, 431 U.S. at 361; Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 481 (8th Cir. 1984). 8 Memorandum in Support of Its Motion to Bifurcate for Discovery and Trial the Issues of Liability and Individual Relief at 4 (attached as "Exhibit A"). Defendants' position would clearly undermine this purpose. A great deal of needless time and resources would have to be expended at the liability stage in order to conduct what defendants acknowledge will be a highly individualized inquiry into whether each of the twenty-five possible victims of discrimination on whose behalf the United States may seek relief is actually a "qualified individual with a disability." This simply is not justified in light of the evidence set out above, see Part II.A., supra, which the United States believes is sufficient by itself to establish a pattern or practice of discrimination at the liability stage of trial. 9 III. CONCLUSION For all of the foregoing reasons, the United States requests this Court to deny Defendants' Motion for Clarification of Bifurcation Order. Respectfully submitted, DEVAL L. PATRICK Assistant Attorney General Civil Rights Division JOHN L. WODATCH L. IRENE BOWEN EUGENIA ESCH SHEILA M. FORAN CHRISTOPHER J. KUCZYNSKI Attorneys Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, DC 20035-6738 (202) 514-3816 10 CERTIFICATE OF MAILING I, Christopher J. Kuczynski, hereby certify that a copy of the foregoing United States' Memorandum in Opposition to Defendants' Motion for Clarification of Bifurcation Order was sent by first class mail this 3rd day of September, 1996 to the following counsel: J. Wallace Wortham, Jr., Esq. Wayne E. Vaden, Esq. Grace Fell Regan, Esq. Assistant City Attorneys Department of Law Office of City Attorney Annex I - 303 1445 Cleveland Place Denver, CO 80202 David C. Feola, Esq. 315 East Florida Avenue Denver, CO 80210 Marilee Langhoff, Esq. 6628 South Marion St Littleton, CO 80121 CHRISTOPHER J. KUCZYNSKI Attorney Disability Rights Section Civil Rights Division U.S. Department of Justice P.O. Box 66738 Washington, DC 20035-6738 (202) 307-1060 11 EXHIBIT A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. No. 93-K-2263 JACK L. DAVOLL; DEBORAH A. CLAIR; and PAUL L. ESCOBEDO; on behalf of themselves and a class of persons similarly situated; Plaintiffs, 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; CIVIL SERVICE COMMISSION, for the City and County of Denver; Defendants. ------------------------------------------------------------------- Civil Action No. 96-K-370 UNITED STATES OF AMERICA, Plaintiff, v. THE CITY AND COUNTY OF DENVER; and THE DENVER POLICE DEPARTMENT; Defendants. ORDER RE: EQUITABLE RELIEF KANE, J. On November l3, 1996, the jury rendered a verdict under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. S 12131 et seq., in favor of the Plaintiffs Jack Davoll, Deborah Clair and Paul Escobedo and awarded them compensatory damages totalling $800,000. Still to he decided are equitable relief issues. At a status conference on December 11, 1996, counsel for the respective parties stated that a hearing on these issues was unnecessary and agreed to file written submissions. Plaintiffs Jack Davoll, Deborah Clair and Paul Escobedo ("Private Plaintiffs") filed Davoll I Plaintiffs, Memorandum re: Equitable Relief and the government filed United States, Motion for Award of Equitable Relief to Jack Davoll. In answer, Defendants I Memorandum of Law in Response to Plaintiffs Motions for Equitable Relief and Defendants' Request to Set an Evidentiary Hearing was filed. The Private Plaintiffs and the United States filed reply briefs. Title II of the ADA, 42 U.S.C. S 12133, incorporates the equitable relief provisions of S 504 of the Rehabilitation Act, 29 U.S.C. 794a. Section 504, in turn, incorporates Title VII remedies, i.e. "[t]he remedies, procedures and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), including the application of sections 706 (f) through - 706(k) (42 U.S.C. 2000e-S(f) through (k) . . . ." 29 U.S.C. 794a(a)(1). Available remedies where a defendant has been found to have discriminated on the basis of disability in violation of the ADA, 42 U.S.C. 12132, include "reinstatement or hiring of employees, with or without back pay... or any other equitable relief as the court deems appropriate." See 42 U.S.C. 2000e-5(g). I deny the Defendants' request for an evidentiary hearing. I grant equitable relief to each Private Plaintiff in the form of a back pay award and a front pay award in lieu of reemployment. I award interest on each back pay award at the Internal Revenue Code's underpayment rate, codified in 26 U.S.C. 6621. 2 I. Request for Evidentiary Hearing. The Defendants request that I "set a date for a three-day evidentiary hearing as a full consideration of the facts, including the opportunity for cross-examination, is necessary in order for Defendants to establish its [sic] position with respect to Plaintiffs I requests for equitable relief." (Defs.' Mem. Law Response at 1.) Without reserving the right to request an evidentiary hearing, defense counsel agreed at the December 11, 1996 status conference that the equitable relief issues would be addressed an the basis of the parties' written submissions. Now, without supporting the contentions in their response brief with any counterproof, such as affidavits or documentary evidence, the Defendant; make a belated request for an evidentiary hearing. They obliquely refer to the purpose of such a hearing, namely, to allow cross-examination regarding the Private Plaintiffs, mitigation efforts, to demonstrate actual salary increases and benefit calculations for the relevant Career Services positions, to challenge the Plaintiffs calculations of back and font pay awards, and to rebut the Plaintiffs' assertion that hostility would make reinstatement unfeasible. Evidence relating to several of these issues was known to the Defendants and could have been presented at the time of trial. Moreover, nothing precluded the Defendants from attaching to their response brief an offer of proof concerning each of the issues on which they request a hearing. 3 It is an axiom of our jurisprudence that courts may rely on the stipulations and statements of counsel. Here, the parties agreed on the record that the equitable issues would be resolved on the basis of written submissions. To secure a vacation of that agreement, especially after the opposing party has performed in reliance on it, requires more than a generic request vaguely asserting a desire to cross-examine or to present documents and calculations known to the Defendants before trial. At the very least, such a request must be accompanied by an offer of proof and should present as well affidavits or other reliable statements of proposed witnesses containing particularized and full recitations so that the court can see that the request "is substantial, not technical, meritorious and not frivolous." Orebaugh v. Doskocil, 359 P.2d 671, 674 (-Colo. 1961) (further quotation omitted). A hearing need not he held unless the offer of proof is favorable to the Defendant and would obtain a result different from that adduced on the existing record. Here, there is no showing that a hearing is required. Because I find the Defendants have made no showing that a hearing is justified nor that it would change the outcome concerning the equitable relief issues, I deny the request for an evidentiary hearing. II. Back Pay. The Private Plaintiffs request equitable relief in the form of back pay for Deborah Clair in the amount of $257,771.52, Paul Escobedo in the amount of $211,222.21, and Jack Davoll in the 4 amount of $151,867.25. The United States seeks back pay on behalf of Jack Davoll in the amount of $130,125.23. The Defendants assert back pay must be limited, if not rejected, based on what alternative employment would have been available and the Private Plaintiffs' mitigation efforts or lack thereof; that the relevant time period for a backpay award is shorter than that asserted by the Plaintiffs; and that the Plaintiffs' calculations of 3% per year for salary increases and 44% of the salary per year for the benefits calculation are erroneous. The Defendants also seek a three day evidentiary hearing to allow for full consideration of the facts concerning the requests for equitable relief. The Defendants argue, because no police officer or otherwise equivalent positions in terms of pay and status exist in the Career The back pay calculation for Jack Davoll in the Davoll I Plaintiffs' Memorandum re: Equitable Relief ($151,867.25) differs from that in the United States' Motion for Award of Equitable Relief to Jack Davoll ($130,125.23). The difference appears primarily attributable to the fact that the United States calculation is based on placing Davoll in a Senior Criminal/Civil Investigator position at step C, while the Private Plaintiffs place him at Step N. The Private Plaintiffs calculate Davoll's lost gross income as approximately equivalent to the monthly salary he made as a police officer, thus placing him in the upper range of the position of Senior Criminal/Civil Investigator. This accords with the Interpretive Guidance on the ADA which requires reassignment to "an equivalent position, in terms of pay and status. . . if the individual is qualified and if the position is vacant within a reasonable time." 29 C.F.R. pt. 1630.2(o), App. (1997),and the intention of awarding back pay - to make the plaintiff whole. Moreover, ambiguities or uncertainties as to the proper amount of a back pay award should be resolved against the offending employer, and not the victim of discrimination. Pitre v. Western Elec. Co., 843 F.2d 1262, 1277 (10th Cir. 1988). Accordingly, subject to the discussion below, I accent the Private Plaintiffs' calculation of Davoll's back pay at $151,867.25. Service for which the Private Plaintiffs are qualified, the City and County of Denver would have reassigned them to lower paid positions within the Career Service, were it not for the City's policy at issue in the case. This position is untenable. The purpose of awarding back pay is to "make whole" the victim of unlawful employment discrimination. Whatley v. Skaggs Cos., Inc., 707 F.2d 1129, 1140 (10th Cir. 1983). [G]iven a finding of unlawful employment, back pay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. Albemarle v. Moody, 422 U.S. 405, 421 1975). Under the ADA, three factors are to be considered in determining the position to be used in calculating back pay: (1) whether the position was equivalent or lower in terms of status and pay, as compared with the original position; (2) whether the individual was qualified for the position; and (3) whether the position was vacant at the time the individual should have been reassigned. See 29 C.F.R. pt. 1630.2(o), App. (1997). At trial, the Plaintiffs introduced evidence establishing that they were qualified for certain Career Service positions which were vacant at or around the time they were terminated, namely the position of Victim Advocate for Clair, Emergency Service Dispatcher for Escobedo, and Senior Criminal/Civil Investigator for Davoll. The Defendants did not challenge the fact that these positions were 6 vacant, nor the salary ranges of the positions. Their only challenge was to suggest through cross-examination that the Plaintiffs were not qualified for the positions. In finding that the Defendants had violated the ADA, the jury found against them in this regard. To calculate their back pay, the Plaintiffs use the salary data for the same positions identified at trial. The Defendants' suggestion that back pay should be calculated using the salaries of unidentified positions which they are considering offering to the Private Plaintiffs is too little too late and has no bearing on the issue. Similarly, the Defendants' claim that employees are typically hired into step A, the first item pay grade, is irrelevant and ignores the purpose of back pay to "make whole" and the requirement under the ADA that the employer reassign "to an equivalent position n terms of pay, status, etc." See 29 C.F.R. pt. 1630.2(o),App. (1997). The Defendants next assert that the Private Plaintiffs have failed to mitigate their damages adequately. In addition to deducting from the back pay the Private Plaintiffs, actual earnings for the relevant period, the Defendants request me to make a deduction of the sum representing the difference between those earnings and any earnings that the 'Private Plaintiffs could have made had they mitigated their damages adequately. "Interim earnings or 'amounts earnable with reasonable diligence by the person or persons discriminated against shall 7 operate to reduce the back pay otherwise allowable." 42 U.S.C. 2000e-S(g). "Mitigation requires not success in finding alternative employment, but only a reasonable exertion to mitigate damages." Whatley, 707 F.2d at 1137 (further citation omitted). The effort which the aggrieved party must make to lessen damages need only be reasonable in the circumstances of the particular case. Hidalgo Properties, Inc. v. Wachovia Mortgage Co., 617 F.2d 196, 200 (10th Cir. 1980). At the trial, each Private Plaintiff testified as to his or her efforts to obtain employment after their respective terminations. The Defendants present no argument or evidence challenging the efforts of Davoll and Escobedo to earn income after they were terminated. Their sole focus is an the fact that in 1995 Claire's income was $5,232.00 from her own horse carriage business and that the Private Plaintiff's expert Donald R. Vogenthaler Ph.D. evaluated Clair's post-termination earning capacity as being $22,966 per year in 1995 dollars. Dr. Vogenthaler's projection was, however, based on general economic and vocational information, rather than on a particularized survey of the positions available to Clair in her geographic area at the time of her termination. In addition, the evidence in the record is that Clair made serious attempts to make her business a success, i.e. there is no evidence that she failed to make a reasonable exertion to earn income. In short, the Defendants have failed to carry their burden of establishing any of the Private Plaintiffs lacked reasonable diligence. See Nord v. 8 United States Steel Corp., 758 F.2d 1462, 1470-71 (11th Cir. 1985). The Defendants also challenge the period for which the Plaintiffs have calculated back pay on the basis that their mitigation efforts were not adequate. Clair and Escobedo have calculated backpay from 1992, and Davoll from 1993, the years of their respective terminations, through December 1996. As stated, the Defendants have not shown a failure to mitigate losses. In any event, a failure to mitigate, would reduce the amount of each award, rather shorten the time period for which back pay calculations are made. The Defendants next assert the Private Plaintiffs, calculations of 3% per annum for salary increases are erroneous and do not accord with the method by which the Career Service Authority calculates increases. According to the January 11, 1997 letter of expert Dr. Vogenthaler, the rate of compensation growth, i.e. wages plus fringe benefits, has averaged 3.16%. (Davoll I Pls. Mem. re Equitable Relief, Ex. B at (unnumbered) 2.) Moreover, a 3% cost of living adjustment for each year has been held to be "reasonable and not excessive." Virgo v. Riviera Beach Assocs.,. Ltd., 30 F.3d 1350, 1364(11th Cir. 1994). Considering that the purpose of a back pay award is to "make whole," I do not consider the calculation of 3% per annum increase to be erroneous. Also challenged, is the Private Plaintiffs, estimate of 44% of the salary per year for the benefits calculations. However, the lost benefits calculation of. 44% of the lost salary figure is a conservative estimate derived from information provided by the 9 Defendants which identified a range of 43.830% to 46.98% for total benefits for the Senior Criminal/Civil Investigator position over the years 1992 through 1996. (See Davoll I Pls.' Mem. re Equitable Relief, Ex. A.) The Defendants further argue the back pay calculations do not deduct the value of any benefits that the Plaintiffs received or would have received had they adequately mitigated their damages. I have not found any failure to mitigate. Although the Defendants provide no proof of the value of any benefits the Plaintiffs have received from subsequent employment, the Private Plaintiff s in their reply state only Davoll has received employer-sponsored health care benefits, in the amount of $2008.50. This amount should be deducted in the calculation of Davoll's back pay. Finally on the back pay issue, the Defendants maintain the proper value of the benefits is their replacement value, rather than the value of the Career Service benefits. Presumably this refers to the market value of the cost to the Plaintiff s of purchasing the same bundle of benefits they would have had but for their terminations. The Defendants provide no estimate of such hypothetical replacement value, which could conceivably exceed the estimated lost benefits figure arising from the use of the Defendants' own valuation of the benefits. I reject this argument as speculative. The estimated amount in the Private Plaintiffs' reply brief is $2008.00. (Davoll I Pls.' Reply re: Equitable Relief at 9.) More accurately, Davoll received $2008.50 in contributions toward employee benefits from March through December 1996. (See United States Reply at 11 n.25.) 10 I award back pay to Deborah Clair in the amount of $257,771.52, Paul Escobedo in the amount of $211,222.21, and Jack Davoll in the amount of $149,858.75. III. Reemployment or Front Pay in Lieu of Reemployment. A further equitable remedy recognized by the Tenth Circuit is reemployment or, alternatively, front pay in lieu of reemployment. See, e.g., Carter v. Sedgwick County, 36 F.3d 952, 957 (10th Cir. 1994); Fitzgerald v. Sirloin Stockade, 624 F.2d 945, 957 (10th Cir. 1980). The Davoll I Plaintiffs seek front pay for Deborah Clair in the sum of $394,068.69 and for Paul Escobedo in the amount of $368,082.87, and either reemployment of Jack Davoll on certain conditions or front pay in lieu thereof in the amount of $400,521.47. The United States seek an order requiring the Defendants to place Jack Davoll in the next vacant Senior Criminal/Civil Investigator position, and award him all benefits for that position retroactive to July 3, 1993. In determining whether to order reemployment, the Tenth Circuit weighs whether it is reasonable or practical to expect the victim of discrimination to return to work for the discriminatory employer. Griffith v. State of Colorado, 17 F.3d 1323, 1330 (10th Cir. 1987). Where reinstatement is not a reasonable remedy, front pay may be awarded instead to compensate a victim for the continuing future effects of discrimination until the victim can be made whole. Pitre v. Western Electric Co., Inc., 843 F.2d 1262, 1278-79 (10th Cir. 1988). 11 Jack Davoll is willing to pursue reemployment, in particular in the vacant position of Senior criminal/Civil Investigator, subject to certain specified conditions. Deborah Clair and Paul Escobedo view reemployment as unreasonable, impractical and intolerable. In their response brief the Defendants assert they are "considering tendering unconditional reinstatement offers" to the Private Plaintiffs. (Defs.' Mem. Law Resp. Pls.' Mots. Equitable Relief at 7.) The Defendants provide no information as to the titles, salaries, or benefits of the positions supposedly under consideration. They object to Davoll's proposed condition of reemployment at reasonably equal pay to that which he received before termination. The Defendants again reason it is within their prerogative to assign Davoll to a lower paid position since there are no equivalent positions in terms of salary in the Career Service to that held by Davoll in the Civil Service. As discussed in relation to the issue of back pay, the jury rejected this approach. The Defendants nevertheless indicate their persistence in refusing to comply with the requirement of the ADA that a plaintiff be reinstated to a vacant position of equivalent pay for which he is qualified. At the hearing on December 11, 1996, despite my remarks that reemployment did not appear to he of interest to the Defendants based an their trial presentation, defense' counsel made no suggestion that the Defendants were considering reemployment. Nor did he object to the submission of the issue of front pay through 12 briefing, or reserve the right to later seek an evidentiary hearing. This, coupled with the Defendants' belated post-trial indication of possible tenders of reemployment in unspecified positions at not necessarily equivalent pay, leads me to question the Defendants' bona fides in this regard. The statute allows for an award of any equitable relief the court deems appropriate. 42 U.S.C. 2000e 5(g) I have broad discretion in fashioning relief to achieve the broad purpose of eliminating the efforts of discriminatory practices and restoring the Plaintiffs to the position each would have likely enjoyed had it not been for the discrimination. See Fitzgerald, 624 F.2d at 957. In making this determination, I am not confined to facts determinative of the issue of the Plaintiffs, termination, but may rely on all of the evidence adduced at trial and may draw all reasonable inferences therefrom. EEOC v. General Lines, Inc., 865 F.2d 1555, 1562 (10th Cir. 1989). While reinstatement may he the preferred remedy, it is not appropriate when the employer, "has exhibited such extreme hostility that, as a practical matter, a productive and amicable working relationship would be impossible.'" Soulak v. K Mart Corp., 894 F.2d 1150, 1157 (10th Cir. 1990) (quoting EEOC v. Prudential Fed. Sav. & Loan Ass'n 763 F.2d 1166, 1171-73 (10th Cir. 1985)). In EEOC v. General Lines, Inc., 865 F.2d at 1564, the Tenth Circuit rejected the argument that the "'extreme hostility" standard had not been met and affirmed the criterion for reinstatement identified in Sirloin Stockade, 624 F.2d at 957, as 13 the need for a "warm relationship." I find the testimony presented at trial, the brief s submitted, the persistent tension between the Private Plaintiffs and the City, the animosity caused by this lawsuit, and the City, s continued reluctance to provide comparable alternative employment evidence a high degree of magnitude of hostility and make it improbable that there could be a "warm relationship." I therefore do not find reinstatement to be a reasonable remedy. If reinstatement is inappropriate, the plaintiff is entitled to an award of front pay. Anderson v. Phillips Petroleum Co., 861 F.2d 631, 638 (10th Cir. 1988). Decisions concerning front pay fall within my discretion. See Carter, 36 F.3d at 957. I conclude that each Private Plaintiff is entitled to an award of front pay to compensate for the continuing future effects of discrimination until each can be made whole. See id. The burden falls on the plaintiff to prove an amount, if any, of a front pay award. Hansel v. Public Serv. Co. of Colorado, 778 F. Supp. 1126, 1136 (D. Colo. 1991). Quantification of front pay cannot he speculative; there must some basis in the record upon which to base an award of future earnings. Id. at 1135. A front pay award must specify an ending date and must take into account any amount that the plaintiff could earn using reasonable efforts. Carter v. Sedgwick County, 929 F.2d 1501, 1505 (10th Cir. 1991). Clair seeks front pay in lieu of reemployment in the amount of $394,068.69, Escobedo in the amount of $368,082.87, and Davoll in the amount of $400,521.47. These figures represent the balance of 14 accumulated losses from 1597 through each Plaintiff's work life expectancy. The starting point for calculation of the front pay award used by each is a combined lost salary with benefits figure calculation for 1996 in the back pay analysis of each. That figure is then increased at 3% per year to reflect anticipated cost of living and merit increases. Subtracted from this each year is Dr. Vogenthaler's estimate of what each Private Plaintiff could reasonably expect earn in non-city employment, including benefits measured using the national average for benefits of 22% of anticipated salary. Dr. Vogenthaler opines each Plaintiff's work life expectancy in non-city employment is less than if he or she had been reemployed and stayed working in positions that reasonably accommodate the disabilities of each. This is based on statistical data taking into account each Plaintiff's disabilities, gender; education, background and training. With regard to whether the future loss stream should be discounted to present value, see Prudential, 763-F.2d at 1173, Dr. Vogenthaler maintains that there is little or no "discount" to net present value. In fact, Dr. Vogenthaler prefers the use of the total offset method, rather than any other type of present value calculation. Under this approach, which recognizes the inherent unpredictability of the future relationship between interest rates and the growth in wages or total compensation, the cost in terms of today's dollars is the present value of the future costs. The Defendants' assertion that the term of the front pay awards should be short on account of the large compensatory awards by the jury is without merit. Whereas compensatory damages are designed to recompense plaintiffs for emotional harm, front pay is designed to make the employee whole for a reasonable future period, required for an employee to reestablish his or her rightful place in the job market. See Hansel, 778 F. Supp. at 1135; Pitre v. Western Elec. Co., 843 F.2d at 1279 n.10. Nor, however, do I 'find support for the Plaintiffs', assertion that "[t]he Tenth Circuit's position on the proper length of front pay is work life expectancy." (Davoll I Pls.' Reply re: Equitable Relief at 15.) Their reliance on Pitter, 843 F.2d at 1278-79, in this regard is misplaced. There, the Tenth Circuit stated "front pay is intended to compensate victims for the continuing future effects of discrimination until the victim can be made whole." Id. at 1278 (emphasis in original) The appeals court stressed that the ultimate fashioning of equitable relief is left to the district court's judgment. Id. at 1279-80. Work life expectancy is one factor to be taken into account when assessing a front pay award. Handles, 778 F. Supp. at 1136. other factors include salary and benefits at the time of termination, any potential increase in salary through regular promotions and cost of living adjustments, the reasonable availability of other work opportunities, the period within which a plaintiff may become reemploy with reasonable efforts and methods to discount any award to net present value. Id. (citing Shore v. Federal Express Corm. , 777 F.2d 1155, 1160 (5th Cir. 16 Exercising my wide latitude of discretion, I am not inclined to award front pay to each Private Plaintiff for the periods sought. I consider that an award of front pay to each Private Plaintiff in the amount calculated by Dr. Vogenthaler from 1997 through 1999, a period of two years, will allow each a reasonable amount of time to find comparable employment. See Dominic v. Consolidated Edison Co. of N.Y., 822 F.2d 1249, 1258 (2d Cir. 1987) (finding that two years was a reasonable amount of time for the plaintiff to find comparable employment); Reeder-Baker v. Lincoln Nat'l Corp., 649 F. Supp, 647, 662 (N.D. Ind. 1986) (awarding front pay for two years). This a conservative estimate of the time needed to make each Plaintiff whole for a reasonable future period. Further, I am satisfied that, through credible expert evidence, the Plaintiffs have established that a zero discount is appropriate. The Defendants had the opportunity to rebut this information but have failed to do so. IV. Prejudgment and Post-Judgment Interest. The Defendants' challenge to the Plaintiffs, request for prejudgment interest on back pay and postjudgment interest of front pay and back pay is without merit. Prejudgment interest on a back pay award is appropriate, [o]therwise, the employer would have an 'interest free' loan on wages due, but unpaid." Daniel v. Loveridge, 32 F.3d 1472, 1478 (10th Cir. 1994). Further, in determining prejudgment interest in discrimination cases, many courts have applied the Internal Revenue Code's 17 underpayment rate, codified in 26 U.S. S 6621, because "[p]rejudgment interest at the 6621 rate is more consonant with the make whole, purpose of Title VII," Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 572 F. Supp. 494, 495 (D. Conn. 1983). Contrary to the Defendants, submission, 28 U.S.C. 9 1961 is expressly applicable to the calculation of postjudgment interest. The relevant Internal Revenue Code's underpayment rates shall apply to the prejudgment interest on the back pay awards for the applicable periods. The Plaintiffs. request I award postjudgment interest under the Internal Revenue Code rates on the back pay and front pay awards during the pendency of any appeal pursued by the Defendants. To the extent any post judgment interest is warranted, it should be calculated at the rate set forth in 28 U.S.C. 1961. V. Conclusion. For the aforesaid reasons, I deny the Defendants' request to set an evidentiary hearing. I award back pay to Deborah Clair in the amount of $257,771.52, Paul Escobedo in the amount of $211,222.21, and -Tack Davoll in the amount of $149,858.75. I award front pay in lieu of reemployment to Deborah Clair, Paul Escobedo and Jack Davoll for the period January 1997 through December 1999, to he calculated in accordance with this order. I award prejudgment interest on the back pay awards, to be calculated at the Internal Revenue Code's underpayment rate, codified in 26 U.S.C. 662l.' On or before July 8, 1997, the Plaintiffs shall submit a draft judgment consistent with the jury verdicts and with this order. Dated this 25 day of June, 1997 at Denver, Colorado. JOHN L. KANE, JR. U.S. SENIOR DISTRICT COURT JUDGE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JAMES R. MANSPEAKER, CLERK U. S. Courthouse 1929 Stout Street, Rm. C-145 Denver, CO 80294 (303) 844-3433 Date: June 25, 1996 Case No. 93-K-2263 - Davoll v. Webb The undersigned hereby certifies that on the above date a true and correct copy of the preceding ORDER RE: EQUITABLE RELIEF signed by Judge John L. Kane, Jr., on June 25, 1997, was mailed to the following: David C. Feola, Esq. Marilee E. Langhoff, Esq. 315 E. Florida Avenue 6628 South Marion Denver, CO 80210 Littleton, CO 80121 Craig C. Eley, Esq. J. Wallace Wortham, Jr., Esq. 3515 S. Tamarac Dr., #200 Assistant City Attorney Denver, CO 80237 1445 Cleveland Place, #303 Denver, CO 80202 Magistrate Judge Pringle Sheila M. Foran, Esq. U.S. Department of Justice Civil Rights Division Disability Rights Section P.O. Box 66738 Washington, DC 20035-6738 June 25 1997 JAMES R. MANSPEAKER,CLERK Deputy Clerk