Free Proposed Findings of Fact - District Court of Arizona - Arizona

1 2 3 4 5 THOMAS J. LARIOS; No. CV-03-2285-PHX-SRB 6 7 v. 8 YUMA COUNTY SHERIFF'S OFFICE; AND YUMA COUNTY; 9 Defendants. 10
THE LAW OFFICES OF ROBERT M. COOK

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Plaintiff, (Proposed) FINDINGS OF FACT AND CONCLUSIONS OF LAW

11

In accordance with the Court's Rule 16 Scheduling Order, Plaintiff hereby submits

12 his proposed Findings of Fact and Conclusions of Law.
MISSOURI COMMONS - SUITE 150 1430 EAST MISSOURI PHOENIX, ARIZONA 85014

13 A. 14

Proposed Findings of Fact 1. Plaintiff has served as a Master Control Officer for the Yuma County Sheriff's

15 Department from April 8, 1995 to September 1, 1995, and a Warrants Officer for the Yuma County 16 Sheriff's Department from August 1,1995 through May 1, 2002. 17 2. Plaintiff suffered a heart attack on November 28, 2001 while working for the Yuma

18 County Sheriff's office and returned to work in mid-January, 2002. 19 3. Plaintiff's Doctor gave written authority on January 7, 2002 to return to work subject to

20 certain conditions and on part-time status. 21 4. A "New Directive" to the Warrants Division was issued on December 28, 2001, while

22 Plaintiff was on leave due to his heart attack. 23 5. The "New Directive" was never delivered Plaintiff after his return to work. 24 25 26 27 28 6. Plaintiff was reprimanded on April 29 and 30, 2002 for failure "to exercise correct

procedures"-non-compliance with the "New Directive". 7. Prior to his heart attack and resultant family leave Plaintiff had been reprimanded one

time in his 7 years of service.

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1

8.

Plaintiff's desk was moved from the Warrants Division on the first floor to a new

2 location upstairs while the warrant files were left downstairs. Plaintiff would be forced to climb stairs 3 numerous times daily. 4 9. On May 1, 2002, Plaintiff was removed from his position as Warrants Officer, solely

5 because of his disability. 6 10. On July 8, 2002, Defendant Ogden notified Plaintiff that he had been demoted from his

7 position as Warrants Officer to the position of Security Control Officer. 8 11. On or about July 26, 2002, Plaintiff requested reasonable accommodation through

9 management, per doctor orders. The accommodation was refused. 10
THE LAW OFFICES OF ROBERT M. COOK

12.

The demotion would be effective was just prior to Plaintiff's approved merit increase which

11 was effective September 1, 2002. 12 13. On October 16, 2002 Plaintiff wrote a letter to Sheriff Ogden asking for an appointment
MISSOURI COMMONS - SUITE 150 1430 EAST MISSOURI PHOENIX, ARIZONA 85014

13 to discuss reinstatement of his position as Warrants Officer or such other position that would allow him to 14 perform the duties of that position. He further advised that the position to which he was demoted required 15 long periods of standing and climbing steep stairs, not consistent with doctor orders. 16 13. On October 21, 2002 in response to Plaintiff's October 16, 2002 letter Sheriff Ogden 17 advised Plaintiff there were no positions available that met his needs. Plaintiff was advised in that letter to 18 see Nora Mejia-Rico relative to his options. 19 14. On November 1, 2002, Plaintiff met with Nora Mejia-Rico from Human Resources 20 who advised him that he had two options: quit or be fired. She said "that there were no other positions 21 available to him (me)." 22 15. During the EEOC meeting the Judge requested Sheriff Ogden and Plaintiff go try to 23 work out our problems. Sheriff Ogden and Plaintiff did meet and the first thing Sheriff Ogden said to 24 Plaintiff was "you can't have your warrant job back." Plaintiff inquired of Sheriff Ogden about the 25 fugitives/extradition position and explained the fact that Plaintiff started the shuttle system and saved 26 27 28

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1 the County $40,000 or more through my research. Sheriff Ogden stated he would not bifurcate the 2 warrant department. 3 16. Plaintiff asked if he could assist the person who goes for supplies on a daily basis. The

4 Sheriff "No". 5 17. Plaintiff did not qualify for the dispatcher position offered by Sheriff Ogden on April 25,

6 2003. He had no use of his little fingers on either hand. He could not pass the typing test required to 7 hold this position. Sheriff Ogden and the department was aware of this and did not offer to by-pass 8 that test. Simply because of the test, Plaintiff would have been turned down for that dispatcher job. 9 Regardless, the same jobs are advertised every week in the Daily Sun, whether a position is available 10 or not.
THE LAW OFFICES OF ROBERT M. COOK

11

18.

On September 4, 2003 Plaintiff's attorney wrote a letter to counsel for the Yuma

MISSOURI COMMONS - SUITE 150 1430 EAST MISSOURI PHOENIX, ARIZONA 85014

12 County Sheriff's Department. He reiterated Plaintiff's desires to continue employment and advised 13 opposing counsel that Plaintiff had in fact applied for numerous positions. Plaintiff's attorney attempted 14 15 16 17 18 19 20 21 22 23 22. 24 accommodations. 25 23. 26 Defendants on his medical restrictions. 27 28 24. Defendants had an affirmative duty to explore further methods of Plaintiff participated in the interactive process in good faith by updating Defendants did not fulfill their duty to offer reasonable and effective to move towards resolving this matter by simply getting me a job. 19. Defendants. 20. On or about December 18, 2003, Plaintiff received a written Dismissal of Charge and On or about November 29, 2002, Plaintiff was discharged from his employment with

Notice of Suit Rights from the U.S. Equal Employment Opportunity Commission, Phoenix District Office regarding Charge Number 350-2003-0618 DA. 21. Plaintiff was replaced by a younger, inexperienced person taking over his position as

Warrants Officer, and the Sheriff's Department was not accommodating to Plaintiff's physical condition when they would not change positions with him because he could not do security control.

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1 accommodation. 2 3 25. 26. Defendants did not participate in good faith with the interactive process. Effective November 29, 2002, Plaintiff Thomas J. Larios was terminated as a Security

4 Control Officer because of the disability of Plaintiff Thomas J. Larios, and which Plaintiff Thomas J. 5 Larios could not physically perform due to his physical condition of muscle weakness and possible 6 nerve damage. 7 27. On or about December 2, 2002, a Deputy from Defendant Yuma County Sheriff's

8 Department arrived at Plaintiff Thomas J. Larios' residence and handed him termination papers from 9 Ogden. 10
THE LAW OFFICES OF ROBERT M. COOK

28.

Defendant Ogden and Defendant Yuma County Sheriff's Department knew of

11 Plaintiff Thomas J. Larios' weakness of his legs due to his heart operation, and they knew Plaintiff 12 Thomas J. Larios could not walk up and down stairs or stand for long periods of time without losing his
MISSOURI COMMONS - SUITE 150 1430 EAST MISSOURI PHOENIX, ARIZONA 85014

13 balance. 14 29. Plaintiff Thomas J. Larios was intentionally transferred to a position that he could not 15 perform without difficulties. 16 30. Plaintiff Tomas J. Larios has incurred attorneys fees in excess of $56,000.00. 17 31. Thomas J. Larios has incurred damages in excess of $100,560.00 in lost wages, loss 18 of medical, life insurance and retirement income. 19 20 21 22 23 speaking, learning, performing manual tasks, and other activities. 24 Plaintiff has a physical impairment and a physiological disorder effecting his cardiovascular 25 body system. 19 CFR 1630.2(h)(1). 26 2. 27 28 accommodation, is able to perform essential functions of a reassignment position. Qualified Plaintiff is a qualified individual with a disability who, with or without reasonable 42 U.S.C. §12112(b)(5)(A). B. CONCLUSIONS OF LAW 1. Plaintiff is a qualified individual protected by the ADA. Plaintiff is substantially

limited to one or more major life activities, which include not only working, but also seeing,

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1 individual with disability means an individual with a disability who satisfies the requisite skill, 2 experience, education and other job-related requirements of the employment position such 3 individual holds or desires, and who, with or without reasonable accommodation, can perform 4 the essential functions of such position. 29 CFR 1630.2(m). 5 3. Plaintiff is qualified and has the ability to perform other desired position. "The

6 Americans with Disabilities Act outlaws adverse employment decisions motivated, even in 7 part, by animus based on a plaintiff's disability or request for an accommodation - 8 motivating factor standard." Head v. Glacier Northwest, 413 F.3d 1053 (9th Cir. 2005). 9 4. Defendants failed to offer reasonable and effective accommodation and had an Humphrey v. Mem'l Hosps. a

10 affirmative duty to explore further methods of accommodation.
THE LAW OFFICES OF ROBERT M. COOK

MISSOURI COMMONS - SUITE 150 1430 EAST MISSOURI PHOENIX, ARIZONA 85014

11 Ass'n, 239 F.3D 1128, 1137 (9TH Cir. 2001). "The purpose of the reasonable accommodation 12 requirement of the American with Disabilities Act (ADA), 42 U.S.C.S. §12101 et seq., is to 13 guard against the facade of `equal treatment' when particular accommodations are necessary 14 15 16 17 18 19 20 21 22 23 24 25 26 7. 27 28 invidious intent through layoff and rehiring when the same action would be impermissible if done in the An employer should not be allowed to accomplish an adverse employment action with to level the playing field." McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004). 5. Plaintiff participated in the Interactive Process by updating Defendants on his Defendants had an "affirmative duty to explore further methods of

medical restrictions.

accommodation." Humphrey v. Mem'l Hosps. Ass'n, 239 F.3D 1128, 1137 (9TH Cir. 2001), defendants did not. "Under appropriate circumstances, `the trier of fact can reasonably infer

from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.'" id. Hernandez v. Hughes Missile Systems Co., 362 F.3d 564 (9th Cir. 2004). 6. Defendants did not participate in good faith in the interactive process. Zivkovic

v. Southern Cal. Edison Co., 302 F.3d 1080, 1089 (9 t h Cir. 2002). Id.. (quoting E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 951 (7th Cir. 2001) (en banc)). Id. (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996).

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1 course of employment. A court's purview is limited, for whether a new or distinct contractual relationship 2 was formed should not be measured in quantitative terms, like the amount of a potential pay increase, but 3 should instead be determined by whether there exists a meaningful, qualitative change in the contractual 4 relationship. Thus, the inquiry should not be confined to titles but should examine actual changes in 5 responsibility and status. McDonnell Douglas, 411 U.S. 792, 36 L.Ed. 2d 668, 93 S. Ct. 1817 (1973) 6 8. The underlying basis for the demotion was because Plaintiff could not physically

7 perform his duties due to his physical condition of muscle weakness and possible nerve damage. 8 9. Plaintiff was wrongfully discriminated against because of the Americans with Disabilities

9 Act of 1990, as amended. 10
THE LAW OFFICES OF ROBERT M. COOK

10.

Plaintiff was wrongfully terminated effective November 31, 2002 as a Security Control

11 Officer. 12 11.
MISSOURI COMMONS - SUITE 150 1430 EAST MISSOURI PHOENIX, ARIZONA 85014

Plaintiff is a qualified individual protected by the ADA. Plaintiff is qualified and has the ability to perform other desired positions. Plaintiff participated in the Interactive Process by updating Defendants on his Defendants had an "affirmative duty to explore further methods of

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12. 13.

medical restrictions. accommodation." 14. 15.

Defendants did not participate in good faith in the interactive process. Defendants failed to offer reasonable and effective accommodation and had an

affirmative duty to explore further methods of accommodation. 16. Plaintiff is entitled to damages including, but not limited to, back pay and benefits, merit

increases, and attorney fees, for a total sum in excess of $156,560.00. THE LAW OFFICES OF ROBERT M. COOK BY: /s/ Robert M. Cook Robert M. Cook, Esq. #002628 Attorney for Plaintiff

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