Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10
THE LAW OFFICES OF ROBERT M. COOK

Robert M. Cook (SBN 002628) THE LAW OFFICES OF ROBERT M. COOK 1430 East Missouri, Suite 150 Phoenix, Arizona 85014 Telephone: (602) 285-0288 Facsimile: (602) 285-0388 E-mail: [email protected] Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA THOMAS J. LARIOS Plaintiff, v. RALPH E. OGDEN; YUMA COUNTY SHERIFF'S OFFICE; AND YUMA COUNTY Defendants. PLAINTIFF'S REPLY TO DEFENDANTS' MOTION FOR RECONSIDERATION OF ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT Case No: CV-03-2285-PHX-SRB

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

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Reply to Motion for Reconsideration Plaintiff, T.J. Larios by and through his undersigned attorney, hereby respectfully submits his Reply to Defendants' Motion for Reconsideration of Order Granting in Part and Denying in Part Motion for Summary Judgment dated July 15, 2005, specifically, denying summary judgment with respect to the Americans with Disabilities Act Claim. The Court was entirely correct in its rulings of July 15, 2005, and the Plaintiff is prepared to proceed to trial forthwith pursuant to the Americans With Disabilities Act Claim. For the reasons stated forth with particularly below, and based upon the Affidavit of T. J. Larios filed herewith, the response and the renewed Motion for Summary Judgment should be summarily denied and Defendants should be taxed costs. Memorandum of Points and Authorities 1. Plaintiff graciously accepts the decision of this Court of July 15, 2005, with regard to its

decision that Plaintiff has a viable claim under the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. §12101.

Page -1-

Case 2:03-cv-02285-SRB

Document 51

Filed 08/19/2005

Page 1 of 8

1 2 3 4 5 6 7 8 9 10
THE LAW OFFICES OF ROBERT M. COOK

2.

Apparently remaining Defendants believe that only by iteration and reiteration can they

impress an alien subject upon a reluctant mind. Plutarch, The Moralia. This Court was entirely correct in its decision from page 9 through page 13 (attached hereto). 3. 4. Being filed simultaneously herewith is the Affidavit of Plaintiff T.J. Larios. Plaintiff T. J. Larios served as a Master Control Officer for the Yuma County Sheriff's

Department from April 8, 1995 to September 1, 1995, and a Warrants Officer for the Yuma County Sheriff's Department from August 1,1995 through May 1, 2002. 5. On November 8, 2001, Plaintiff T. J. Larios suffered a heart attack. On May 1, 2002

he was informally removed from his position as Warrants Officer because of his disability. On July 8, 2001 Plaintiff T. J. Larios was formally demoted. 6. In November, 2002 Plaintiff T. J. Larios met with Nora Mejia-Rico from Human

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

Resources who advised him that he had two options: quit or be fired. She said "that there were no other positions available to him." During the EEOC meeting the Judge requested Defendant Sheriff Ogden and Plaintiff T. J. Larios go try to work out their problems. Defendant Sheriff Ogden and Plaintiff T. J. Larios did sit down together and the first thing Sheriff Ogden said to him was "you can't have your warrant job back." 7. In On July 8, 2002 Plaintiff T. J. Larios was demoted from the job as Warrants Officer

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

to that of Detention Officer in violation of the Americans with Disabilities Act (ADA). On November 28, 2001 Plaintiff T. J. Larios suffered a heart attack. On November 29, 2002, he was terminated. At no time did the Yuma County Sheriff's Department ever provide a reasonable accommodation to Plaintiff T. J. Larios. In deed, the Yuma County Sheriff's Department retaliated against Plaintiff T. J. Larios solely based on his disability and put an American with a disability in a highly rigorous position vastly more difficult physically than the position he had occupied. 8. At no time did the remaining Defendants ever accommodate Plaintiff T.J. Larios.

Indeed, the accommodation was in the form of reprisal and punishment by removing Plaintiff from his job as Warrants Officer and placing him in an extremely dangerous situation (for anybody, of any age, of any

Page -2-

Case 2:03-cv-02285-SRB

Document 51

Filed 08/19/2005

Page 2 of 8

1 2 3 4 5 6 7 8 9 10
THE LAW OFFICES OF ROBERT M. COOK

sex) as Duty Officer in the tower. After they got sued, remaining Defendants made vague references to so called "County Jobs" to which Plaintiff applied but was told that in fact each of these were "State". There is apparently a gradual shifting of the county work force to state employee status (the undersigned believes solely for the purpose of later invoking sovereign immunity). 9. The response is nearly indecent. The splendid reasoning of this Court (even with

respect to claims that Plaintiff lost on) should in fact be published. The law of the case is now clear. Plaintiff should be permitted to proceed to trial and prove that there never was any undue hardship on the county to provide the Plaintiff with a viable alternative. The evidence in fact will show that the supervisors were specific in getting rid of the Plaintiff because he got ill and couldn't perform the most rigorous job duties which he didn't have in the first place. 10. If not to discriminate solely on the basis of his disability, why would the Defendants place

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

Plaintiff following notice of his disability (he had taken sick leave for several months prior) demote him from Warrants Officer to Detention Officer and thereafter deliberately move him into harms way involving stepping and walking to a tower as a guard. This is clear intent to discriminate against Plaintiff solely on the basis of his disability. You know a person has a disability. You take that person who suffered the disability while in a non-dangerous job and thereafter place that person with the disability in a job that could not conceivably be performed by the person who had the disability nor was it an accommodation comparable to his former position. 11. The ADA expressly incorporates the remedies available under the Title VII of the Civil

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Rights Act of 1964. 42 U.S.C. §2000(e)4, 2000(e)5, 2000(e)6, 2000(e)8, 2000(e)9, 42 U.S.C. §12117(a). Title 7 in turn authorizes Title VII in turn authorizes the District Court "to order such affirmative action as may be appropriate which may include . . . reinstatement. . . with or without back pay . . . , or any other equitable relief as the Court deems appropriate." The references "other equitable relief" would only make sense if the relief previously described reinstatement which may be awarded with or without is itself equitable." Consistent with that language the Court has held that award of back pay is an integral part of the equitable remedy of reinstatement and must therefore be tried to the Court. Lutz v.

Page -3-

Case 2:03-cv-02285-SRB

Document 51

Filed 08/19/2005

Page 3 of 8

1 2 3 4 5 6 7 8 9 10
THE LAW OFFICES OF ROBERT M. COOK

Glendale Union High School, 403 F.2d 1061 (9th Cir. 2005).

12.

In White v. Burlington Northern

& Santa Fe Railway Co., 364 F.3d 789 (6th Cir. 2004): After an employee complained about the specific incidents of alleged sexual harassment on the Employer's Railroad, her supervisor removed her from the forklift position allegedly due to seniority and assigned her to a standard track labor position. Her pay and benefits remained the same, but her new job was more arduous and dirtier than the forklift position. A few days after the employee filed a charge regarding sex discrimination retaliation, the employee was suspended without pay. After 37 days she was reinstated with back pay. The Court held that both the suspension and the job transfer were adverse employment actions. The finder of fact was entitled to find that the employers asserted legitimated reasons were false and were pretext for unlawful retaliation. Echazabal v. Chevron, 336 F.3d 1023 (9th Cir. 2003). The Ninth Circuit does not prefer summary judgment where there is a material issue of fact whether the company's decision to terminate was legitimate. 13. Whether a reasonable finder of fact could determine that there was no concrete evidence

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

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

of the cost of accommodating the Plaintiff constitutes an undue hardship, the record did not permit judgment as a matter of law for UPS on its business necessity defense. Morton v. UPS, 272 F.3d 1249 (9th Cir. 2001). And the employer cannot use absences protected by the Family Leave and Medical Act against employees as a negative factor in its decision to fire the employee. Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001). In Johnson v. Paradise Valley United School District, (9th Cir. 2001) the Appellate Court held that although the evidence was far from overwhelming and regardless of the fact that Plaintiff was not disabled the evidence is nonetheless sufficient to permit the finder of fact to infer that Defendant's adverse action against Plaintiff resulted from Defendant's perception that Plaintiff was disabled. 14. There are genuine issues of material fact regarding whether the employer failed to

accommodate by proper reassignment under the Americans with Disabilities Act. Morton v. UPS, supra. 15. The employer is not require to endure undue hardship in accommodating employee's

disability nor is it required to treat disabled employees differently by giving them priority in hiring and

Page -4-

Case 2:03-cv-02285-SRB

Document 51

Filed 08/19/2005

Page 4 of 8

1 2 3 4 5 6 7 8 9 10
THE LAW OFFICES OF ROBERT M. COOK

reassignment over non-disabled employees. Daugherty v. City of El Paso, (1995 5th Cir. TX, 56 F.3d 695) Rearing Den'd (1995 5th Cir. TX). 16. The American's with Disabilities Act, 42 U.S.C. §12101, et. seq., provides what the term To satisfy the burden of proposing a reasonable

"reasonable accommodation" may include.

accommodation, a Plaintiff must suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. Holt v. Olmsted Township Board of Trustees, 43 F.Supp. 2nd 812 (D.C. ND Ohio 1998). 17. The relevant accommodation must not impose an undue hardship on the employer. 42

U.S.C. §12111(10). If the employee establishes that a reasonable accommodation is possible, then the employer bears the burden of proving that the accommodation is unreasonable and imposes an undue hardship on the employer. Relevant factors in determining whether an accommodation constitute an undue hardship are included in 42 U.S.C. §12111(10)(B) of the Americans with Disabilities Act, 42 U.S.C. §12101, et. seq. 18. 29 C.F.R. §1630.2(P)(2)(v) suggests that the impact on the ability of other employees

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

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

to perform their duties and the impact on the facility's ability to conduct business should be considered in determining whether an accommodation constitutes an undue hardship. 19. The Americans with Disabilities Act, 42 U.S.C. §12101, et. seq. considers a modified

work schedule to be a reasonable accommodation. The Defendant bears the burden of showing that a proposed reasonable accommodation would impose an undue hardship. Employee disapproval of a proposed accommodation, in and of itself, does not rise to the level of undue hardship. The objections and complaints of fellow employees, in and of themselves, do not constitute undue hardship in the conduct of the employer's business. 20. In Raytheon Company v. Hernandez, 54 U.S. 44 (S.Ct. 2003) the U.S. Supreme Court

set forth the burden shifting scheme for discriminatory treatment cases. Under the scheme, Plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action. If the employer meets this burden, the

Page -5-

Case 2:03-cv-02285-SRB

Document 51

Filed 08/19/2005

Page 5 of 8

1 2 3 4 5 6 7 8 9 10
THE LAW OFFICES OF ROBERT M. COOK

presumption of intentional discrimination disappears, but the plaintiff can still prove disparate treatment by, for instance, offering evidence demonstrating that the employer's explanation is pretextual. 21. The U.S. Supreme Court consistently recognizes a distinction between claims of

discrimination based on disparate treatment and claims of discrimination based on disparate impact. Disparate treatment is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or other protected characteristic. Liability in a disparate treatment case depends on whether the protected trait actually motivated the employer's decision. 22. Disparate impact claims involve employment practices that are facially neutral in their

treatment of different groups but that in fact fall more harshly on one roup than another and cannot be justified by business necessity. Under a disparate impact theory of discrimination, a facially neutral employment practice may be deemed illegally discriminatorywithout evidence of the employer's subjective intent to discriminate that is required in a disparate treatment case. 42 U.S.C. §12112(b) defines "discriminate" to include utilizing standards, criteria or methods of administration that had the effect of discrimination on the basis of disability and using qualifications standards, employment tests, or other selection criteria that screen out or tend to screen out an individual with a disability." 23. 42 U.S.C. §12112 provides in pertinent part as follows:

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

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(a) General rule. No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. (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; (5) (A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or (B) denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such Page -6-

Case 2:03-cv-02285-SRB

Document 51

Filed 08/19/2005

Page 6 of 8

1 2 3 4 5 6 7 8 9 10
THE LAW OFFICES OF ROBERT M. COOK

denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant; 24. Here the Defendants not only failed to provide a reasonable accommodation to Plaintiff,

the Defendants in fact provided the most unreasonable accommodation imaginable from a desk issuing warrants to a tower watching prisoners. There is no undue hardship shown on the County nor can it ever show an undue hardship.1 25. In Holt v. Olmsted Township Board of Trustees, 43 F.Supp. 2nd 812 (DC ND Ohio

1998): The District Court denied an employer's motion for summary judgment with respect to the employee's reasonable accommodation claim under the ADA. To satisfy the burden of proposing a reasonable accommodation, Plaintiff must suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed it's benefits. The relevant accommodation must not impose an undue hardship on the employer. 42 U.S.C. §12111(10). If the employee establishes that a reasonable accommodation is possible, then the employer bears the burden of proving that accommodation is unreasonable and imposes an undue hardship on the employer. Relevant factors in determining whether an accommodation constitutes undue hardship are included in 42 U.S.C. §12111(1)(B) of the Americans with Disabilities Act. Employee disapproval of a proposed accommodation in and of itself does not rise to the level of undue hardship. The Defendant must come forth with evidence beyond that which indicates that there will be some disapproval of the accommodation from other employees. 26. For the foregoing reasons, the Motion for Reconsideration should be denied and Plaintiff

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

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

granted his day in Court. RESPECTFULLY SUBMITTED this 19th day of August, 2005.

1

The undersigned attorney has practiced in Yuma, Arizona for 25 years on a fairly regular basis. There are so many positions available in the Courthouse for the County that it is inconceivable that an alternative employment arrangement could not have been found for Plaintiff in the Sheriff's department itself. Moreover, the County never offered any employment with the County but instead referred applicant to "State jobs". This cute trick only exacerbated the position of Defendants.

Page -7-

Case 2:03-cv-02285-SRB

Document 51

Filed 08/19/2005

Page 7 of 8

1 2 3 4 5 6 7 8 9 10
THE LAW OFFICES OF ROBERT M. COOK

THE LAW OFFICES OF ROBERT M. COOK

By /s/ Robert M. Cook Robert M. Cook Attorney for Plaintiff

ORIGINAL OF THE FOREGOING filed via electronic filing this 19th day of August, 2005 to: Clerk of the U.S. District Court of AZ 401 W. Washington Phoenix, AZ 85003 COPY OF THE FOREGOING sent via U.S. mail and email this 19th day of August, 2005 to: Joseph E. Lambert, Esq. Mesa Commerce Center 1930 So. Alma School Road, Suite A-115 Mesa, AZ 85210 [email protected] By: /s/ Susan G. Brown Susan G. Brown

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

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Page -8-

Case 2:03-cv-02285-SRB

Document 51

Filed 08/19/2005

Page 8 of 8