Free Response in Opposition to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

TEMPE CITY ATTORNEY'S OFFICE MARLENE A. PONTRELLI, #016980 JANIS L. BLADINE, #018244 KARA L. STANEK, #020161 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Phone: (480) 350-8227 Fax: (480) 350-8645 Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CRAIG TUCKER, No. CV 03-1425 PHX DGC Plaintiff, v. THE CITY OF TEMPE, Defendant. OPPOSITION TO PLAINTIFF'S MOTION FOR REINSTATEMENT AND DEFENDANT'S REQUEST FOR ATTORNEYS' FEES

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

Defendant City of Tempe hereby submits it's opposition to Plaintiff Craig Tucker's Motion for Reinstatement, and requests its attorneys' fees associated with the necessity of responding to this Motion. I. Background. Plaintiff seeks, after trial and by way of motion, a post-verdict judgment from the Court to be reinstated to his position. Plaintiff has never raised the issue of reinstatement previously, did not preserve the issue in the Final Pretrial Conference Order, nor was it ever submitted to the jury for consideration. As such, seeking such a post trial verdict at this time causes "unnecessary delay," an "increase in the cost of litigation," and is frivolous, warranting the award to Defendant of its attorneys' fees incurred in responding herein.

Case 2:03-cv-01425-DGC

Document 57

Filed 12/14/2005

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

II.

Plaintiff Failed to Preserve the Issue. While Plaintiff cites to a number of cases that indicate that reinstatement is a

possibility in an action where an employee is found to have been terminated in violation of the American with Disabilities Act, Plaintiff did not seek such remedy. In this Court's Final Pretrial Conference Order, Plaintiff claims that the issues with respect to his remedy are as follows; · Whether Officer Tucker is entitled to an award of nominal damages against Defendant. (E.a.19) · Whether Officer Tucker is entitled to an award of compensatory damages against Defendant. (E.a.20) · Whether Officer Tucker is entitled to an award of reasonable costs and attorneys' fees. (E.a.21) In addition, the stipulated jury verdict form specifically asked the jury "Has the Plaintiff proven by a preponderance of the evidence that he should be awarded damages to compensate for a net loss of wages and benefits and other damages as defined in the Court's instructions?" And "If your answer is "Yes," in what amount?" Plaintiff did not ask the jury to consider whether reinstatement was an appropriate remedy under the circumstances, nor was there any evidence presented by Plaintiff for this Court to make an equitable finding that reinstatement would be appropriate. III. Plaintiff Has Not Demonstrated His Entitlement to Reinstatement. Even assuming, arguendo, that the jury verdict should stand with respect to the finding that Plaintiff was "disabled" as defined by the ADA, Plaintiff 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. In Harris v. Harris & Hart, Inc., 206 F.3d 838 (9th Cir. 2000) the Court examined whether the employer's medical release requirement was a violation of the pre-offer medical inquiry under the ADA. The Court found that when an employee is seeking reemployment with the same employer, it would not be a violation of the ADA to seek a medical release since "the employer must be able 2
Case 2:03-cv-01425-DGC Document 57 Filed 12/14/2005 Page 2 of 4

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

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

to assess the extent of the applicant's recovery from inability to perform." Id. at 844. The Court further found "if accommodations are necessary to enable job performance, the employer, who is already familiar with the disability, must learn of those accommodations in order to have any realistic chance of assessing the ability to perform." Id. at 845. See also Brumley v. Pena, 62 F.3d 277 (8th Cir. 1995) (plaintiff who left for psychological reasons required to submit to medical examination to determine the plaintiff's level of recovery). In this case, the Defendant requested a psychological medical release and the Plaintiff presented absolutely no evidence at trial that he was capable of performing as a police officer at this time, with or without an accommodation. Nor has he submitted any evidence in the form of a medical examination to contradict the findings of Defendant's expert, Dr. Bevan, regarding the ability of Plaintiff to perform the essential functions of his job. Plaintiff's only evidence was respect to the two doctors he sought for counseling services, Drs. Tracy and Sorokin, and both confirmed that they had not done a psychological evaluation. Moreover, Dr. Sorokin specifically testified that she felt

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

Plaintiff could perform as a "tile setter" and that she did not do any further testing because Dr. Bevan already had done the testing. Under the circumstances, it would be

inappropriate for Plaintiff to now claim, despite not presenting any evidence to support his claim, that he should be reinstated to his former position as a police officer. IV. Plaintiff's Request Is Harassing and Increases the Cost of Litigation. Despite the fact that Plaintiff testified as to the actions he has taken against the Defendant, including the Chief of Police, in the form of the trying to have the Chief decertified, and sending out literature critical of the Defendant, Plaintiff's attempt to now bring an action for reinstatement is simply harassing and causes unnecessary delay. Moreover, by filing such a request, in light of Plaintiff's failure to preserve any issue of reinstatement, Plaintiff is unnecessarily increasing the cost of litigation in this matter. Accordingly, an award of sanctions for requiring Defendant to have to respond to this request is warranted. 3
Case 2:03-cv-01425-DGC Document 57 Filed 12/14/2005 Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13
Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

Conclusion For the foregoing reasons, Defendant respectfully requests that Plaintiff's request for reinstatement be denied. RESPECTFULLY SUBMITTED this 14th day of December, 2005. TEMPE CITY ATTORNEY'S OFFICE

s/ Marlene A. Pontrelli Marlene A. Pontrelli Janis L. Bladine Kara L. Stanek 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendant

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
Case 2:03-cv-01425-DGC Document 57 Filed 12/14/2005 Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on December 14, 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: Stephen G. Montoya, Esq. MONTOYA JIMENEZ, P.A. 3200 N. Central Avenue, Suite 2550 Phoenix, AZ 85012 Attorney for Plaintiff I further certify that on December 14, 2005, the attached document was hand delivered to: HONORABLE DAVID G. CAMPBELL United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 623 401 W. Washington Street, SPC 58 Phoenix, AZ 85003 s/ Amada Culbreth