Free Reply to Response to Motion - District Court of Arizona - Arizona

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Stephen G. Montoya MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Craig Tucker, plaintiff, vs. The City of Tempe, defendant. Plaintiff submits the following Memorandum of Points and Authorities as his Reply in support of his Motion for Reinstatement. RESPECTFULLY SUBMITTED this 27th day of December 2005. By s/ Stephen G. Montoya Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 Attorney for Plaintiff

No. CIV 03-1425-PHX-DGC Plaintiff's Reply in Support of his Motion for Reinstatement (Oral argument requested)

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MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff timely requested the equitable remedy of reinstatement.

Although the City of Tempe concedes that reinstatement is a remedy available "in an action where an employee is found to have been terminated in violation of the Americans with Disabilities Act," the City claims that "Plaintiff did not seek such [a] remedy." See Defendant's Motion for Reinstatement, p. 2, lines 2-4. This assertion is inaccurate. In Officer Tucker's Complaint of July 25, 2003, he expressly sought the remedy of reinstatement: WHEREFORE, Mr. Tucker respectfully requests the Court to enter a judgment against the City of Tempe, awarding him the following relief: .... B. An injunction ordering the City of Tempe to reinstate Mr. Tucker in the position that he would currently enjoy, but for the City's discriminatory conduct, including payment of all back-pay and all other employment related benefits . . . . Accordingly, by means of his Complaint, Officer Tucker gave the City of Tempe express notice that he was seeking reinstatement at the very onset of this proceeding. The City next contends that Officer Tucker "did not ask the jury to consider whether reinstatement was an appropriate remedy under the circumstances. . . ." However, the issue of reinstatement was not an issue to be resolved at trial by the jury. To the contrary, as the Ninth Circuit recently observed in Lutz v. Glendale Union High School, 403 F.3d 1061, 1068 (9th Cir. 2005), the issue of reinstatement is an equitable remedy to be addressed by the Court--post-verdict. See also Fuhr v. School District of the City of Hazel Park, 364 F.3d 753, 760-761 (6th Cir. 2004) ("Upon a [jury's] finding of invidious discrimination, a district court has wide discretion to impose equitable remedies. . . . The availability of instatement or reinstatement is therefore entrusted to the sound discretion of the district court"), and Che v. Massachusetts Bay Transportation Authority, 342 F.3d 31, 42-43 (1st Cir. 2003) ("we believe it proper to leave the question of reinstatement or front pay open for the district court to determine following the jury's determination of damages"). -2-

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Moreover, a Court should address the issue of reinstatement--post-verdict--even if reinstatement was not specifically requested in the plaintiff's complaint. As the Ninth Circuit noted when remanding the issue of reinstatement for resolution by the district court in an employment discrimination case: Every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir.1978) (emphasis added), quoting Fed. R. Civ. P. 54(c). Despite the clear applicability of these authorities to the facts of this case, the City completely fails to address them in its Response to Officer Tucker's Motion for Reinstatement. Under these circumstances, the City's assertion that Officer Tucker somehow failed to preserve the issue of reinstatement is erroneous. The merits of Officer Tucker's entitlement to reinstatement is squarely before this Court. II Officer Tucker is entitled to reinstatement based on the jury's factual findings and the law of the Ninth Circuit.

The City next asserts that Officer Tucker is not entitled to reinstatement because he "has not presented, and did not present at trial, any evidence that he was able to work (and therefore be reinstated) with or without a reasonable accommodation." See Defendant's Motion for Reinstatement, p. 2, lines 22-24. The City's assertion is belied by the specifics of the Form of Verdict that the jury returned in favor of Officer Tucker. Specifically, in that verdict, the jury expressly found Officer Tucker "had proven by a preponderance of evidence that he was a 'qualified individual' as defined in the Court's instructions." Jury Instruction 19 defines a "qualified individual" as follows: The term qualified individual means an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. Thus, contrary to the City's contentions in this regard, the jury specifically found that Officer Tucker was able to work, with or without a reasonable accommodation. This finding is -3-

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supported by Officer Tucker's consistently excellent Performance Evaluations and the testimony of Drs. Sorokin and Tracy, who both testified that Officer Tucker was fit to return to work as a law enforcement officer. Significantly, the jury also rejected all of the City affirmative defenses to Officer Tucker's ADA claim, including "undue hardship" and "direct threat." In short, the jury's verdict in favor of Officer Tucker strongly counsels the Court to grant Officer Tucker the "preferred remedy" of reinstatement. See, e.g., Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014 (9th 2000), Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148, 1156 (9th Cir.1999), and Cassino v. Reichhold Chems., Inc. 817 F.2d 1338, 1346 (9th Cir.1987). This conclusion is underscored by the fact that the City does not claim that it lacks a position for Officer Tucker in the Police Department or that Officer Tucker's reinstatement would displace another officer's settled expectations regarding his or her work assignment within the Department.1 The City has simply failed to in anyway rebut Officer Tucker's presumptive entitlement to reinstatement. RESPECTFULLY SUBMITTED this 27th day of December 2005. By s/ Stephen G. Montoya Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 Attorney for Plaintiff

The City also completely fails to address the fact that even its own expert, Dr. Robert Bevan, concluded that Officer Tucker could work in "some position" with the City. -4-

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CERTIFICATE OF SERVICE I hereby certify that on December 27, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Marlene A. Pontrelli Janis L. Bladine Kara L. Stanek Tempe City Attorney's Office P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendants I further certify that on December 28, 2005, the attached document was hand-delivered to: The Honorable David G. Campbell United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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