Free Brief in Support of Motion - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, Defendant. DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION FOR RELIEF FROM JUDGMENT OF REINSTATEMENT _____________________________________________________________________ Defendant, City and County of Denver, (hereafter "Denver" or "City") by and through its attorneys, Christopher M.A. Lujan and Franklin A. Nachman, submits its Reply Brief in Support of its Motion for Relief from Judgment of Reinstatement and renewed Motion for Stay of Judgment of Reinstatement. In support for its Motion, the Defendant states as follows: INTRODUCTION Plaintiff's response to Defendant's motion mischaracterizes the facts, then proceeds to cite inapplicable cases in an attempt to deny Defendant's request for limited relief from the Court's Order of reinstatement. Defendant's motion is grounded in fact and supported by law, and should therefore be granted. Defendant's motion does not seek to refuse to reinstate Plaintiff to his position as a firefighter. Rather Denver is reasonably insisting that he demonstrate his fitness for

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 2 of 10

duty for this position. Concern for public safety, Plaintiff's safety, and the safety of Plaintiff's fellow firefighters compel the Defendant to ensure that the Plaintiff is physically and mentally capable of fulfilling his duties as a firefighter. Finally, case law, which the Plaintiff failed to distinguish in his response brief, justifies the City's position. FACTUAL BACKGROUND The Court is well aware of the facts. It is uncontroverted that Plaintiff has been and continues to collect disability pension benefits while claiming to be unable to perform the functions of a firefighter. Nevertheless, having elected to claim a disability retirement, Plaintiff asks the City to take on faith that he is able to return to his previous position. Plaintiff's alternative, that he be reinstated without passing a fitness for duty test, contradicts the purpose for having a fitness for duty examination before Plaintiff returns to work. Contrary to the Plaintiff's argument in his response, the City has neither been inconsistent nor dilatory in its position. Defendant's position in opposition to Plaintiff's Americans with Disabilities Act ("ADA") claim was that Plaintiff was not disabled for purposes of the Act because his inability to perform any particular job do not render him disabled as defined by the ADA and case law. Defendant also argued, and the Court agreed, that acknowledging Plaintiff's impairment did not regard him as disabled, another category of disability defined by the ADA. Defendant has not been dilatory in bringing this motion. The Court did not condition reinstatement on a requirement that Plaintiff be fit for duty. The City brought this motion when Plaintiff refused to submit to a limited number of tests to determine whether he was fit for duty as a firefighter.

2

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 3 of 10

LEGAL ARGUMENT I. PLAINTIFF'S LEGAL AUTHORITY DOES NOT PRECLUDE DENVER FROM TAKING STEPS TO ENSURE THAT THE PLAINTIFF IS FIT TO RETURN TO EMPLOYMENT AS A FIREFIGHTER. Plaintiff consistently reminds the Court in his response that reinstatement is the preferred remedy. Up to that point, the parties agree. But simply reciting hornbook law, does not determine the ultimate issues in Defendant's motion. None of the cases

Plaintiff cited in his response arose from the fact pattern similar to the one in this case. None of the cases involved the issue of whether the Plaintiffs were able to return to their previous employment, and whether the court would require a fitness for duty examination and evaluation before reinstatement. The cases Plaintiff cited do not stand for the automatic proposition that an employer, subject to an order of reinstatement, is always barred from examining an employee to ensure that he is fit for duty. None of the Tenth Circuit cases cited in Plaintiff's response address the issue that is the subject of Defendant's motion. In Giandonato v. Sybron Corp., 804 F. 2d 120 (10th Cir. 1986), the Tenth Circuit Court of Appeals held the plaintiff unreasonably refused an offer for reinstatement. Plaintiff attempted to avoid accepting the offer by casting doubt on the timing of the offer. The Court also rejected plaintiff's argument that the unconditional offer needed clarification. In assessing the validity of the plaintiff's rejection, the Tenth Circuit looked at the circumstances surrounding the rejection of the offer. See Giandonato v. Sybron Corp., 804 F. 2d at 124 citing Claiborne v. Illinois Central Railroad, 583 F.2d 143, 153 (5th Cir. 1978) cert. denied, 442 U.S. 934 (1979) ("the trial court must consider the circumstances under which the offer was made or

3

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 4 of 10

rejected, including the term of the offer and the reasons for refusal.") The Giandonato Court also noted that "an employee's refusal to accept reinstatement does not automatically preclude relief if he or she has valid reason's for refusal." Giandonato v. Sybron Corp., 804 F. 2d at 124 citing Taylor v. Teletype Corp., 648 F.2d 1129, 1139 (8th Cir. 1981) cert. denied, 454 U.S. 969 (1981). The Court of Appeals disagreed with Plaintiff's efforts to avoid reinstatement. Fitness for duty was not an issue in that case. Plaintiff's refusal to submit to a fitness for duty evaluation is based on his erroneous legal position that Denver could not require him to undergo such an examination before returning to work. Likewise, in Albert v. Smith's Food and Drug Centers, Inc., 356 F.3d 1242 (10th Cir. 2004), the Tenth Circuit also held that the plaintiff unreasonably refused an offer of reinstatement by attempting to cast doubt on the offer on the basis of the timing of the offer. Again, that case did not involve issue of fitness for duty. In E.E.O.C. v. Prudential Federal Sav. and Loan Ass'n., 763 F. 2d 1166 (10th Cir. 1985), the Court, after citing hornbook law on the issue of reinstatement, did not order reinstatement because of extreme hostility between the employee and employer. This decision did not address the issue of an employer's ability to test an employer for fitness for duty prior to reinstatement. The district court case of Herrera v. IBEW Local 68, 228 F. Supp. 2d 1233 (D. Colo. 2002), was a decision denying Defendant's motion for summary judgment. The court did not rule on the merits of the dispute, other than to find questions of fact precluded summary judgment. It made no findings on the issue of reinstatement and

4

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 5 of 10

merely recited general law on the subject. Fair v. Red Lion Inn, 943 P. 2d 431 (Colo. 1997), a breach of contract case cited without explanation in Plaintiff's brief, established law in Colorado that refusal to accept an unconditional offer of reinstatement cut off claims for damages after the date of the refusal. Neither of these cases offers sufficient support to bar Denver's request that the Plaintiff demonstrate his fitness for duty prior to reinstatement back to the Denver Fire Department. The cases from other jurisdictions cited in Plaintiff's response offer no more support for his position. None of them involve the issue of the requirement for a fitness for duty examination before reinstatement. The court in Graefenhain v. Pabst Brewing Co., 870 F. 2d 1198 (7th Cir. 1989) denied reinstatement despite an offer of reinstatement from defendant because the defendant's offer did not guarantee plaintiff would return to a substantially similar position to his previous employment. In Gu v. Hughes STX Corp., 127 F. Supp. 2d 751 (D. Nev. 2001), the offer of reinstatement (made before the court ruled on the remedies) was unclear as to the scope of the anticipated employment and there was a history of extreme hostility between the parties. In Eichler v. Riddell, Inc., 961 F. Supp. 211 (N.D. Ill 1997), the court

characterized the reinstatement offer as belated and half hearted. Furthermore, it was found that defendant's willingness to terminate plaintiff's successor to reinstate her to her previous position showed a lack of probability that plaintiff would be able to continue in defendant's employment without being terminated in the immediate future. Finally, Plaintiff's reliance on Orzel v. City of Wauwatosa Fire Dept., 697 F.2d 743, 757 (7th Cir. 1983) cert. denied 464 U.S. 992 (1983) is misplaced and this case is

5

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 6 of 10

factually distinguishable from the case as bar. In Orzel, the plaintiff has passed a physical four months prior to the offer of reinstatement by the city. Further, the city withdrew the offer of reinstatement after the plaintiff accepted the offer. Because the court found that the plaintiff had valid reasons to reject the defendant's conditional offer of reinstatement, it ruled that the rejection was reasonable. Id. Contrary to Plaintiff's belief, Orzel does not stand for the position that an employer may never test an employee for fitness for duty. Rather, Orzel held that an employee's refusal for The circumstances the

reinstatement under these circumstances was appropriate.

plaintiff experienced in Orzel is much different than the circumstances faced by Plaintiff in this matter. The cases Plaintiff cites do not preclude Denver from taking steps to ensure that he is capable of performing his duties as a firefighter. II. PLAINTIFF FAILED TO DISTINGUISH CASES CITED IN DEFENDANT'S MOTION. Plaintiff's attempts to distinguish the Defendant's reliance on the decisions in the Thomlinson and Doane cases from the Eighth Circuit Court of Appeals are neither correct nor probative. Thomlinson v. City of Omaha, 63 F. 3d 786 (8th Cir. 1995); Doane v .City of Omaha, 115 F. 3d. 624 (8th Cir. 1997). As noted in Defendant's motion, the Eighth Circuit in Thomlinson stated that the district court had granted reinstatement without making an explicit determination that plaintiff met the standards for physical fitness for a firefighter and therefore remanded the case for a determination of whether plaintiff was physically fit or could become physically fit within a reasonable period of time to perform the functions of a firefighter. The Thomlinson Court, citing 6

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 7 of 10

public safety concerns, held that such a determination was necessary.

"Given the

importance of public safety and the potential hazards involved in requiring the City to employ an unfit worker, we find such an explicit determination necessary." Thomlinson v. City of Omaha, 63 F. 3d at 790. Likewise, in Doane, the absence of the plaintiff from the police force for eight years coupled with an impairment not rising to the level of a disability justified the district court's order that Plaintiff not be reinstated until he could demonstrate that he could pass the physical and mental tests prescribed by the city. In both of those cases, the Eighth Circuit Court of Appeals required a fitness for duty examination before ordering reinstatement, although it affirmed verdicts in Plaintiffs' favor that they were not disabled for purposes of the ADA. In this case the Court determined that Plaintiff was not disabled for purposes of the ADA as a matter of law, although the evidence was uncontroverted that Plaintiff has been collecting disability pension benefits, ostensibly because he is unable to perform the functions of a firefighter. This case is no different than the Thomlinson and Doane cases, as there is evidence that Plaintiff is unable to perform the functions of a firefighter. Defendant is entitled to take Plaintiff at his word on this issue, and to

discover whether he is fit for duty for this position. For that reason, together with a four and half year absence from the fire department, Defendant is both factually and legally justified in requiring a fitness for duty examination as a prerequisite to reinstatement.

7

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 8 of 10

III.

DEFENDANT IS NOT RAISING A DIRECT THREAT DEFENSE THROUGH ITS CITATION OF THE DOCTRINE OF PUBLIC POLICY. Again, mischaracterizing Defendant's arguments, Plaintiff asserts, without

citation of authority, that Defendant is surreptitiously trying to raise a direct threat defense under the Americans with Disabilities Act. A review of the City's motion will quickly dispel that argument. The first set of cases the City cited to support its public policy argument did not involve safety sensitive positions or ones arguably creating a direct threat to the public. Defendant did argue that the rationale supporting the

holdings in those cases applied even more strongly when Plaintiff held a position such as a firefighter. However, the argument does not depend on the degree of potential

threat to the safety of the public and co-employees and stands on its own with respect to former employees who may lack the ability to perform their previous positions. Those cases, Whitlock v. Donovan, 598 F. Supp. 126 (D. D. C. 1984); Ferguson v. U. S. Department of Labor, 1 AD Cases (BNA) (1218) (N. D. Fla. 1988); and McElrath v. Kemp, 714 F. Supp. 23 (D. D. C. 1989) all conditioned reinstatement of plaintiffs on undergoing a fitness for duty examination in the absence of safety considerations. Those decisions apply equally well to this case. IV. DEFENDANT IS ENTITLED TO A STAY OF PROCEEDINGS AT LEAST UNTIL THE COURT RULES ON POST TRIAL MOTIONS. Defendant believes it has a strong position on the merits of its post trial motions, as it has previously argued. It may suffer irreparable harm if Plaintiff is returned to work while being unable to perform the functions of a firefighter. Plaintiff has not worked as a firefighter for nearly four and a half years and the public interest, as demonstrated in the

8

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 9 of 10

fitness for duty cases, favors a stay. For these reasons, the Court should stay the Order of Reinstatement pending resolution of this Motion and post trial motions. Securities Investor Protections Corp. v. Blinder, Robinson and Co. Inc., 962 F. 2d 960, 968 (10th Cir. 1992). (Citing conditions for granting stay). CONCLUSION In view of the foregoing facts and law, Defendant requests limited relief from the Order of Reinstatement entered in this case, pending Plaintiff's ability to demonstrate fitness for duty as a firefighter for the City and County of Denver. Defendant also requests that the Court stay the Order of Reinstatement pending decision on this Motion and post trial motions. Respectfully submitted this 11th day of July, 2007. CHRISTOPHER M. A. LUJAN FRANKLIN A. NACHMAN Assistant City Attorneys By: s/ Christopher M.A. Lujan Christopher M. A. Lujan Franklin A. Nachman Denver City Attorney's Office Litigation Section 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: 720.913.3100 Facsimile: 720.913.3190 E-mail: [email protected]

9

Case 1:04-cv-01067-MSK-CBS

Document 239

Filed 07/11/2007

Page 10 of 10

CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on July 11, 2007, I electronically filed the foregoing DEFENDANT'S REPLY BRIEF IN SUPPORT OF MOTION FOR RELIEF FROM JUDGMENT OF REINSTATEMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark E. Brennan [email protected] and I hereby certify that I have mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name: Interoffice mail to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety 1331 Cherokee St. Denver, CO 80204 Chief Larry Trujillo Deputy Chief Jim Sestrich Denver Fire Department 745 W. Colfax Avenue Denver, CO 80204

s/ Raquel R. Trujillo____________ Raquel R. Trujillo, Legal Secretary

10