Free Brief (Non Appeal) - District Court of Arizona - Arizona

1 2 3 THOMAS J. LARIOS; 4 5 v.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV-03-2285-PHX-SRB CLOSING ARGUMENT IN SUPPORT OF JUDGMENT IN FAVOR OF PLAINTIFF THOMAS J. LARIOS AND AGAINST DEFENDANTS AND EACH OF THEM

Plaintiff,

YUMA COUNTY SHERIFF'S OFFICE; AND 6 YUMA COUNTY; 7 Defendants. 8 Plaintiff Thomas J. Larios, by and through his undersigned attorney, and pursuant to the Order 9 of this Court of December 13, 2005, hereby respectfully submits on this 4th day of January, 2006, at 10 12:00 p.m. o'clock, its simultaneous Closing Argument in Support of Judgment, being entered by this

11 Honorable Court in Favor of Plaintiff Thomas J. Larios and Against Defendants and Each of Them for 12 the reasons set forth with particularity below. 13 14 Plaintiff Thomas J. Larios respectfully asks that this Court find as a matter of fact that: 1. Plaintiff Thomas J. Larios served as a Master Control Officer for Yuma County

15 Sheriff's Department from April 8, 1995 to September 1, 1995; and Plaintiff Thomas J. Larios served as a Warrants Officer for Defendant Yuma County Sheriff's Department from August 1,1995, through 16 May 1, 2002; and Plaintiff Thomas J. Larios served as a security control officer for the Defendant 17 Yuma County Sheriff's Office from May 29, 2002, to November 29, 2002. [Exhibits 1, 2, 3, 7 & 36] 18 2. On November 28, 2001, while serving as a warrants officer for Defendant Yuma 19 County Sheriff's office, Plaintiff Thomas J. Larios suffered a heart attack. [Exhibits 1, 2,& 3] 20 3. On January 7, 2002, Dr. Roger W. Nutt gave written authority to Plaintiff Thomas J. 21 Larios to return to work subject to certain conditions and on part-time status. [Exhibit 10 ] 22 4. In mid January, 2002, Plaintiff Thomas J. Larios returned to work as warrants officer

23 for Defendant Yuma County Sheriff's Department. [Exhibit 1] 24 5. On December 28, 2001, thirty days to the day following the heart attack of

25 Plaintiff Thomas J. Larios, Defendant Yuma County Sheriff's Office had issued a "New Directive" to the warrants division, which "New Directive" was never delivered to Plaintiff Thomas J. Larios either 26 during the recuperative period from his heart attack or after Plaintiff Thomas J. Larios returned to work 27 as warrants officer in January, 2002. [Exhibit 13] 28

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6.

On or about April 29th, April 30th, 2002, Plaintiff Thomas J. Larios was reprimanded Prior to November 28th, 2001, Plaintiff Thomas J. Larios had been reprimanded one

2 for failure "to exercise correct procedures" for non-compliance with the "New Directive". [Exhibit 14] 3 7. 4 time in his 7 years of service. In deed, he always received excellent evaluations including for the subject period. [Exhibit 7 ] 5 8. The desk of Plaintiff Thomas J. Larios was moved from the Warrants Division on the 6 first floor to a new location upstairs while the warrant files were left downstairs. Plaintiff Thomas J. 7 Larios was forced to climb stairs numerous times daily. [Exhibits 2, 3, 4 &5] 8 9. On May 1, 2002, Plaintiff Thomas J. Larios was removed from his position as 9 Warrants Officer, apparently because a reference to a body part in which Captain Reyes could relocate 10 the security control officer position. [Exhibit 15] 11 10. On July 8, 2002, Defendant Sheriff Ogden of Defendant Yuma County Sheriff's Office

12 notified Plaintiff Thomas J. Larios that Plaintiff Thomas J. Larios had been demoted from his position as 13 warrants officer to the position of security control officer. [Exhibit 14] 11. On or about July 26, 2002, Plaintiff Thomas J. Larios requested reasonable 14 accommodation through management, per doctor orders. The accommodation was refused. [Exhibits 15 1 & 14 ] 16 12. The demotion would be effective just prior to Plaintiff's approved merit increase whichwas 17 effective September 1, 2002. [Exhibit 7] 18 13. Plaintiff Thomas J. Larios asked if he could assist the person who goes for supplies on a 19 daily basis. The Sheriff said "No". [Exhibit 2] 20 14. On October 16, 2002, Plaintiff Thomas J. Larios wrote a letter to Sheriff Ogden asking

21 for an appointment to discuss reinstatement of his position as warrants officer or such other position that 22 would allow him to perform the duties of that position. He further advised that the position to which he was 23 demoted required long periods of standing and climbing steep stairs, not consistent with doctor orders. 24 [Exhibit 17] 15. On October 21, 2002, in response to Plaintiff Thomas J. Larios' October 16, 2002, letter 25 Sheriff Ogden advised Plaintiff Thomas J. Larios there were no positions available that met his needs. 26 Plaintiff Thomas J. Larios was advised in that letter to see Nora Mejia-Rico relative to his options. [Exhibit 27 18] 28 16. On November 1, 2002, Plaintiff Thomas J. Larios met with Nora Mejia-Rico from

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1 Human Resources who advised him that he had two options: quit or be fired. She said "that there were 2 no other positions available to him." [Exhibit 2] 3 17. On November 1, 2002, Plaintiff Thomas J. Larios' attorney notified Defendant 4 Yuma County Sheriff's Department that Plaintiff had been constructively terminated. [Exhibit 47] 18. On or about December 2, 2002, a Deputy from Defendant Yuma County Sheriff's 5 Department arrived at Plaintiff Thomas J. Larios' residence and handed him termination papers from 6 Ogden. [Exhibit 19] 7 19. Defendant Ogden and Defendant Yuma County Sheriff's Department knew of 8 Plaintiff Thomas J. Larios' weakness of his legs due to his heart operation, and they knew Plaintiff 9 Thomas J. Larios could not walk up and down stairs or stand for long periods of time without losing his 10 balance. [Exhibits 11, 21 ,42, 54 & 69] 11 20. Plaintiff Thomas J. Larios was intentionally transferred to a position that he could not

12 perform without difficulties. [Exhibit 63] 13 21. On or about November 29, 2002, Plaintiff Thomas J. Larios was discharged from his

14 employment with Defendants. [Exhibit 20] 22. During the EEOC meeting the Judge requested Sheriff Ogden and Plaintiff Thomas J. 15 Larios go try to work out our problems. Sheriff Ogden and Plaintiff Thomas J. Larios did meet and 16 the first thing Sheriff Ogden said to Plaintiff Thomas J. Larios was "you can't have your warrant job 17 back." Plaintiff Thomas J. Larios inquired of Sheriff Ogden about the fugitives/extradition position and 18 explained the fact that Plaintiff Thomas J. Larios started the shuttle system and saved the County 19 $40,000 or more through my research. Sheriff Ogden stated he would not bifurcate the warrant 20 department. [Exhibit 21] 21 23. On or about October 31, 2003 Plaintiff Thomas J. Larios sued Defendant Yuma

22 County in the Superior Court (which matter was subsequently moved to this Court). [ Exhibit 6 ] In the 23 Petition, as served upon Defendants and each of them including the personnel department, Plaintiff 24 Thomas J. Larios demanded "reinstatement". The reinstatement request was within the time frame of Yuma County. See the testimony of Nora-Mejia-Rico. 25 24. At no time did Defendants or any of them offer reasonable accommodation to 26 Plaintiff Thomas J. Larios. [Exhibit 18] 27 25. Plaintiff was replaced by a younger, inexperienced person taking over his position as 28 Warrants Officer, and Yuma County Sheriff's Department was not accommodating to Plaintiff's

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1 physical condition when they would not change positions for him because he could not do security 2 control. [Exhibit 63] 3 26. Defendants did not fulfill their duty to offer reasonable and effective 4 accommodations. [Exhibit 63] 27. Plaintiff participated in the interactive process in good faith by updating 5 Defendants on his medical restrictions. [Exhibits 11, 21, 42, 54 & 69]. 6 28. Defendants did not perform such duty to explore further methods of accommodation. 7 29. Defendants did not participate in good faith with the interactive process. 8 30. Plaintiff Thomas J. Larios did not qualify for the dispatcher position offered by Sheriff 9 Ogden on April 25, 2003. He had no use of his little fingers on either hand. He could not pass the 10 typing test required to hold this position. Sheriff Ogden and the department were aware of this and did 11 not offer to by-pass that test. [Exhibit 2] 12 31. On September 4, 2003, Plaintiff's attorney wrote a letter to counsel for the Yuma

13 County Sheriff's Department. He reiterated Plaintiff's desires to continue employment and advised 14 opposing counsel that Plaintiff Thomas J. Larios had in fact applied for numerous positions. [Exhibit 15 16 17 18 24] 32. On or about December 18, 2003, Plaintiff received a written Dismissal of Charge and

Notice of Suit Rights from the U.S. Equal Employment Opportunity Commission, Phoenix District Office regarding Charge Number 350-2003-0618 DA. [Exhibit 21] 33. At all times, Defendants took advantage of Plaintiff Thomas J. Larios because of

19 his heart attack and placed him in a dangerous workplace climbing a ladder several times a day, and 20 Defendants offered pictures of the type of units that Plaintiff worked in, but agreed under oath that these 21 were not really pictures of the units where he worked, not a picture of the chair which was provided to 22 him and not the appropriate view of the facility. [Exhibit 6 & 63] 23 34. Plaintiff Thomas J. Larios was discriminated against by virtue of his termination

24 solely because he was disabled. On the stand all witnesses agreed that Plaintiff Thomas J. Larios was not terminated including the Sheriff of Yuma County for any comments that he may have made which 25 lead to his demotion from warrants officer to control officer. It is nearly inconceivable that Defendants 26 could knowingly place a man with a clear disability which impacted his hearing, his vision, and his ability 27 to walk and put him in an extremely arduous situation requiring that he climb a ladder each and every 28 time he wanted to either get in or get out of the control room.

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35.

The evidence shows and invidious intent on the part of Defendants and each of

2 them to force Plaintiff Thomas J. Larios into a voluntary resignation in lieu of being terminated. Plaintiff 3 Thomas J. Larios was not terminated for any other reason than his disability. The reasons in support of 4 his demotion only go to the fact of demotion and are not to be carried over to the termination. Plaintiff 5 6 7 8 Thomas J. Larios should be reinstated to a comparable situation in either warrants or any comparable job in the Sheriff's Department, be reinstated for his full pay together with any incremental increases thereupon to the time of the judgment. Such reinstatement to be effective if even for a day providing Thomas J. Larios with all accrued benefits and otherwise. In any event the County cannot reduce to a indubitable equivalent the amount of benefits it should have awarded Plaintiff Thomas J. Larios, the

9 County should be required to pay an amount of not less than $101,000,00 together with attorney's 10 fees. If attorney's fees are awarded to Plaintiff Thomas J. Larios, he should be permitted to have his 11 attorney submit a statement setting forth with particularity all attorney's fees and expenses incurred in 12 connection with reaching the judgment to be submitted forthwith upon judgment in favor of Plaintiff 13 Thomas J. Larios as to damages and attorney's fees and reasonable expenses. Not less than 14 $50,000.00. 15 16 17 18 Plaintiff Thomas J. Larios requests that this Court conclude as a matter of law that: 36. Plaintiff Thomas J. Larios is a disabled person within the meaning of The

Americans With Disabilities Act, 42 U.S.C.§§12101(8); see also Barnett v. U.S. Air , Inc., 228 F.3d 1105, 1111 (9th Cir. 2000), overruled on other grounds, 535 U.S. 391, 122 S. Ct. 1516 (2002) (finding that an individual who cannot perform the functions of his current position, but can perform the

19 essential functions of a reassignment position, is a "qualified individual"). The Act and the Regulations 20 provide that a person is disabled if he cannot perform simple tasks such as walking, hearing, seeing, 21 lifting, and as a result of a cardiovascular condition 29C.F.R. 1630.2(h)(1);(i). 22 37. This is in clear violation of 42 U.S.C.§12112(2005) which provides that:

th 23 (see Garcia v. Pueblo Country Club, 299F.3d 1233 (10 Cir.2002), where a plaintiff employee sued

24 for a charge of job discrimination by a defendant employer, a golf club, under the Civil Rights Act of 1991, 42 U.S.C. §1981, an Age Discrimination Employment Act (ADEA), 29 U.S.C, 621) 25 (a) "No covered entity shall discriminate against a qualified individual with a disability 26 because of the disability of such individual in regard to job application procedures, the 27 hiring, advancement, or discharge of employees, employee compensation, job training, 28 and other terms, conditions, and privileges of employment.

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(b)

Construction. As used in subsection (a), the term, "discriminate" includes­ (1) limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee;"

38.

At no time did Defendants or any of them offer a reasonable accommodation to

Plaintiff Thomas J. Larios. During a very brief recuperative period following his heart attack on November 28, 2001, and before Plaintiff Thomas J. Larios returned to work in mid January, 2002, Defendants and each of them issued a "New Directive" respecting the warrants position, which new directive was never furnished in any way to Plaintiff Thomas J. Larios. 39. The medical records find that Plaintiff Thomas J. Larios was disabled person from

10 November 28, 2001, to the time of his termination November 29, 2002. Is it a coincidence that 11 precisely 30 days transpired from the date of the heart attack of Plaintiff Thomas J. Larios and the 12 issuance of the new directive? Is it a coincidence that 1 year and 1 day after Plaintiff Thomas J. Larios 13 suffered his heart attack he was terminated from his employment? Although the demotion was 14 couched in terms of Plaintiff's response to his awkward environment having to walk up stairs, down 15 16 17 18 stairs and being under investigation, Plaintiff Thomas J. Larios demanded reinstatement as of October 29th, 2002, following his demotion and prior to his termination. The demand for reinstatement was within the Personnel Rules of Yuma County. 40. From November 29, 2001, the time of the heart attack Plaintiff Thomas J. Larios

to May of 2003, following litigation, following and EEOC Complaint and EEOC ordered mediation, the

19 did the County ever attempt to offer any semblance of accommodation. Indeed, testimony revealed 20 that there was only 1 job of all County jobs available that was available to Plaintiff Thomas J. Larios, 21 moreover, all of the jobs stated in the letter of Sheriff Ogden of April 25, 2003, only a clerk position 22 was available. The rest were a nullity. And these "accommodations" came only a year and six months 23 after the heart attack. 24 25 26 27 28 41. As a matter of law the case can be summarized as follows: A senior employee becomes disabled following a heart attack on the job. A new directive is issued while he is on recuperative leave. The employee returns to work. He is thereafter systematically warned that he must either resign or be terminated. His desk is moved from down stairs to upstairs. After being demoted for insubordination, the employee is was then placed in an environment that was not accommodating

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1 but purposely designed to punish. Is it reasonable to expect that an employee who has had a heart 2 attack can six months later climb step stairs that senior counsel for both parties hereto could not 3 probably climb on their best day? 42. As of the date of termination November 29, 2002, there can be only one legal 4 conclusion: The sole purpose of the termination was because of the disability of Plaintiff Thomas J. 5 Larios. Sheriff Ogden agreed after much turmoil, that indeed the demotion was based on 6 insubordination, but that the termination came after Plaintiff Thomas J. Larios had been placed on 7 Family Medical Leave and sick days, because he simply could not physically perform a security control 8 officer position. 9 43. Plaintiff's counsel recognizes that this is "a small case", but with significant 10 ramifications to people of advanced age who become disabled and are punished for being disabled and 11 run out of the retirement system, just 2 ½ years before vesting. At the time of the adoption of Social 12 Security Legislation there was no comprehension that retirees would live as long as they are living. 13 Seniors 65 to 75 years old must continue to work. This demographic is huge. And the way that the 14 system handles its senior employees must be carefully defined. When a public entity hires a senior 15 16 17 18 person, is it not logical and predictable that the senior person may be susceptible to disability and that the employer might have to make certain accommodations. So what. Make them do it. Accommodations must be made in this society for a demographic that is real, poignant and quite diligent. Plaintiff Thomas J. Larios at all times had wonderful evaluations until he had his heart attack after which the retaliations began. The question boils down to this: May an employer refuse to reinstate

19 an employee and instead insist that the employee be placed in a position of danger following a heart 20 attack. There is no evidence that the County ever, ever, offered any reasonable accommodation in a 21 timely manner. Following the heart attack, Plaintiff Thomas J. Larios was systematically being forced to 22 resign. He was warned, resign or be terminated. No bonafide reason was given for the new 23 classification of the warrants job which mysteriously came 30 days after the Plaintiff's heart attack in a 24 position he had held for 7 years which suddenly redefined the job to exclude Plaintiff from it. RESPECTFULLY SUBMITTED this 4th day of January, 2006. 25 THE LAW OFFICES OF ROBERT M. COOK 26 27 28 BY: /s/ Robert M. Cook Robert M. Cook, Esq. #002628 Attorney for Plaintiff

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