Bailey v. City of Englewood et al

Filing 146

ORDER granting 103 Defendant's Motion for Summary Judgment. Judgment shall enter in favor of Defendant. Entered by Judge Raymond P. Moore on 7/10/2015. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-01715-RM-NYW
DOUGLAS BAILEY,
Plaintiff,
v.
CITY OF ENGLEWOOD,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Plaintiff Douglas Bailey seeks to hold his former employer, the City of Englewood (the
“City”), liable under the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq. (the “ADA”),
for firing him based on his alleged disability. Before the Court is the City’s Motion for Summary
Judgment. (ECF No. 103.) For the reasons stated below, the Court GRANTS the City’s motion.
I. LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine dispute of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569-70
(10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether
the evidence presents a sufficient disagreement to require submission to a jury or is so one–sided
that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000). “Under Rule

56(c), the moving party[] always bears the initial responsibility of informing the district court of
the basis for its motion . . . .” Reed v. Bennet, 312 F.3d 1190, 1994 (10th Cir. 2002) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). However, the moving party “can satisfy that
burden with respect to an issue on which it does not bear the burden of persuasion at trial simply by
indicating to the court a lack of evidence for the nonmovant on an essential element of the
nonmovant’s claim.” 1-800-Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1242 (10th Cir.
2013) (citation omitted). Once the moving party meets its initial burden of demonstrating an
absence of a genuine dispute of material fact, the burden then shifts to the non-moving party to
move beyond the pleadings and to designate evidence which demonstrates the existence of a
genuine dispute of material fact to be resolved at trial. See id. A fact is “material” if it pertains to
an element of a claim or defense; a factual dispute is “genuine” if the evidence is so contradictory
that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson,
477 U.S. at 248. In considering whether summary judgment is appropriate, the facts must be
considered in a light most favorable to the non-moving party. Cillo v. City of Greenwood Vill.,
739 F.3d 451, 461 (10th Cir. 2013) (citations omitted).
If a movant properly supports a motion for summary judgment, the opposing party may not
rest on the allegations contained in her complaint, but must respond with specific facts showing a
genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007)
(holding that “[t]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact”) (citation omitted).
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Only admissible evidence may be considered when ruling on a motion for summary
judgment. Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1314 (10th Cir. 2005) (citation
omitted) (holding that hearsay evidence is not acceptable in opposing a summary judgment
motion); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
Affidavits must be based on personal knowledge and must set forth facts that would be admissible
evidence at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quotations and
citation omitted). “Conclusory and self-serving affidavits are not sufficient.” Id. The Court
will not consider statements of fact, or rebuttals thereto, which are not material or are not
supported by competent evidence. Fed. R. Civ. P. 56(c)(1)(A), 56(e)(2), 56(e)(3). “[O]n a
motion for summary judgment, it is the responding party’s burden to ensure that the factual dispute
is portrayed with particularity, without depending on the trial court to conduct its own search of the
record.” Cross v. The Home Depot, 390 F.3d 1283, 1290 (10th Cir. 2004) (internal quotation and
citation omitted). The Court is “not obligated to comb the record in order to make [Plaintiff’s]
arguments for [her].” See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1199 (10th Cir. 2000).
Further, Local Rule 7.1(e) provides that “[e]very citation in a motion, response or reply shall
include the specific page or statutory subsection to which reference is made.” D.C. Colo. L. Civ.
R. 7.1(e).
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts as recited below are based on adequate citations to the record which would be

admissible at trial. The facts are recited in a light most favorable to the non-moving party.
Plaintiff was employed as a fire fighter and paramedic by the Englewood Fire Department
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(the “Fire Department”) from September 9, 2006 through December 8, 2011. (ECF No. 27,
Compl. at ¶ 7.) A document created by the Fire Department listing the job duties of fire fighters
and paramedics states that, for both positions, an employee is expected to perform the following
“[e]ssential [d]uties,” among others: (1) respond to fire and emergency calls as a member of an
engine company, truck company or rescue company; (2) perform advanced life support functions
for the sick and injured; and (3) maintain the fire station, station equipment, advanced life support
equipment, required drugs and sign-off sheets. (ECF No. 103-3, City of Englewood Position
Description at 1-2.)
In the Spring of 2009, Plaintiff injured his back on the job and underwent spinal surgery in
July, 2009. (ECF No. 27 at ¶ 8.) Plaintiff was assigned to light duty following his surgery and
worked out of the Fire Marshal’s office. (Id.) Beginning around September, 2009, while still
under rehabilitation from surgery, Plaintiff began to experience depression. Shortly thereafter,
Plaintiff informed Assistant Fire Marshal Marla Wilcox as well as Fire Marshal Ben Greene of his
depression. (Id. at ¶ 10.) Plaintiff was later diagnosed with situational depression and was
prescribed medication. Plaintiff then met with Paramedic Coordinator Steve Greene to inform
him of this diagnosis and to request a restructuring of his daily work routine, including additional
duties to accommodate his disability. (Id. at ¶12.) Plaintiff’s physician cleared Plaintiff to
return to regular duty around this same time. (Id.; see also ECF No. 103-17, Apr. 6, 2011 Kresin
Correspondence.)
There are three shifts of fire fighters and paramedics at the Fire Deparment: the A-Shift,
B-Shift and C-Shift. (ECF No. 103-11, Burley Dep. at 19:21-22.) Prior to his surgery, Plaintiff
4

worked in C-Shift. After he was cycled back into regular duty, Plaintiff was placed into B-Shift
by Fire Chief Michael Pattarrozi (“Chief Pattarrozi”), along with two other individuals who were
also transferred to B-Shift at that time. (ECF No. 103-1, Bailey Dep. at 121:7-18.) Although
Plaintiff preferred working in C-Shift, he did not report any issues with his new assignment to
B-Shift at the time he was reassigned. (Id. at 122:2-4.)
The Fire Department follows a specific command structure. (See ECF No. 103-2, Petau
Aff. at ¶ 4.) Fire fighters and paramedics are directly supervised by a Lieutenant at each station.
(Id.) The lieutenant varies according to the shift and station. Each shift is supervised by a
Battalion Chief. The Battalion Chief is the direct supervisor for the Lieutenants and a second
level supervisor for the firefighters. The Deputy Fire Chief directly supervises the Battalion
Chiefs. The Fire Chief directly supervises all employees. (Id.) While he was working in
C-Shift, Plaintiff was under the supervision of Battalion Chief Richard Pettau (“Battalion Chief
Petau”). (ECF No. 103-1, Bailey Dep. at 74:4-14.) When Plaintiff began working on B-Shift in
2009, he was directly supervised by Lieutenant Josh Frederick (“Lieutenant Frederick”). (Id. at
95:8-13.) Andy Fox was the Battallion Chief (“Battallion Chief Fox”) in charge of B-Shift.
(ECF No. 27 at ¶14.)
Following the onset of his depression, Plaintiff was involved in several transgressions of
Fire Department rules that led to disciplinary action against him by the Fire Department.
On July 11, 2010, Plaintiff and other fire fighters on his shift were dispatched to a fire.
(ECF No. 103-4, Jul. 28, 2010 “Written Corrective Action” Memorandum.) Upon arriving at the
scene of the fire, Plaintiff misplaced his radio and began working without one, a violation of
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departmental policy. (Id.) Plaintiff eventually notified his supervisor, Lt. Frederick, that he did
not have his radio. (ECF No. 103-1, Bailey Dep. at 116:18-21, 119:9-23.) At some point, the
safety officer in charge of keeping track of all officers on the scene was unable to locate Plaintiff.
(Id. at 104:10-105:3.) On July 28, 2010, Plaintiff was issued a corrective action letter relating to
this incident. (ECF No. 103-4, Jul. 28, 2010 “Written Corrective Action” Memorandum.) The
letter also noted that Plaintiff treated other employees and patients discourteously. (Id.) At a
meeting between Plaintiff, Battallion Chief Fox and Lt. Frederick to review the letter, Plaintiff
stated that he had experienced some situational depression following his back surgery in 2009 and
that he had sought treatment with the City’s Employee Assistance Program. (ECF No. 103-1,
Bailey Dep. at 106:2-22.)
In late 2010, Lt. Frederick was transferred to a different station and Lt. Mark Burley
(“Lieutenant Burley”) became Plaintiff’s direct supervisor. (ECF No. 103-1, Bailey Dep. at
76:3-77:23.) Sometime after Lt. Burley became Plaintiff’s supervisor, Plaintiff complained to
him of “burnout” from working as the attending paramedic and asked if he could work some shifts
as a fire fighter. (Id. at 80:3-25.) Lt. Burley then assigned Plaintiff to work as a fire fighter for
some, but not all, shifts. (ECF No. 103-11, Burley Dep. at 115:11-116:1.) After working with
Plaintiff as a fire fighter, Lt. Burley observed that Plaintiff was unable to do “some basic tasks”
that he was asked to do as a fire fighter. (Id. at 116:2-3, 114:24-115:4.) Lt. Burley discussed his
concerns with Battallion Chief Fox and others and it was decided that Plaintiff be given the same
probationary evaluation given to new fire fighters to better assess his skills. (Id. at 116.)
Without being given notice that he would be evaluated, Plaintiff was asked to take the
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probationary firefighter evaluation in March, 2011. (See ECF No. 103-5, “Remedial Firefighter
Skills Check-off, Policy No: 98-02.”) In Lt. Burley’s written report of Plaintiff’s evaluation, he
indicated that although Plaintiff was an experienced fire fighter, he lacked “the knowledge of an
entry level firefighter”; Plaintiff’s “working knowledge of basic firefighting skills” was “very
poor”; Plaintiff was “unclear with his explanations”; the donning and doffing of Plaintiff’s fire
protective gear was “sloppy”; and that there were “serious concerns [about Plaintiff’s] physical
fitness level.” (Id.)
Plaintiff acknowledged that his performance on this examination was “not up to reasonable
standards,” (ECF No. 103-1, Bailey Dep. at 132:10-13), and related to Lt. Burley that he suffered
from depression in a subsequent meeting between them to review the written evaluation. (ECF
No. 130-5, “Remedial Firefighter Skills Check-off, Policy No: 98-02” at 3; ECF No. 103-11,
Burley Dep. at 167:6-8.) Lt. Burley informed Battalion Chief Fox about Plaintiff’s report of
depression and Battalion Chief Fox responded by taking Plaintiff to receive a medical evaluation
from the City’s physician, Dr. Brian Beatty. (Id. at 160:20-25; ECF No. 103-13, Fox. Dep. at
66:1-5.) After examining Plaintiff, Dr. Beatty completed a report indicating that Plaintiff had
“some mild depression,” but that he was “placed on medication in January by his personal
physician . . . and was feeling much better and is currently having no problems.” (ECF No. 103-6,
Mar. 28, 2011 “Fit for Duty Report” at 1.) Dr. Beatty further noted that Plaintiff’s depression was
“well controlled with medications.” (Id. at 2.) Following on from Dr. Beatty’s evaluation, the
City Department of Human Resources provided Plaintiff with a letter on March 30, 2011 to deliver
to his personal physician asking for more detail about any restrictions that should be applied to
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Plaintiff’s employment. (ECF No. 103-7, Mar. 30, 2011 Correspondence.) Although Plaintiff
did have one of his physicians complete this letter after several months, he did not provide a copy
of the completed letter to the Fire Department. (See ECF No. 103-14, Eaton Dep. at 45.)
As a result of Plaintiff’s evaluation by Lt. Burley, Plaintiff was pulled off regular duty and
assigned remedial training for one month with another fire fighter. (See ECF No. 103-2, Petau
Aff. at ¶ 7.) Plaintiff was eventually returned to regular duty as a fire fighter and was returned to
his position as a paramedic in August, 2011. (Id. at ¶ 8.) For the first 30 days following his
reassignment as a paramedic, Plaintiff was placed on the same team as another, more experienced
paramedic, with the intention that he would receive further on-the-job training and evaluation.
(Id.)
After receiving this additional training, Plaintiff continued to have issues that were
cataloged by his supervisors. In August, 2011, shortly after his return to working as a paramedic,
Plaintiff was disciplined for incorrectly inventorying certain narcotics that were carried on the
ambulance he was assigned to. One of the required job duties of a paramedic was to conduct an
inventory of the drugs on the ambulance at the beginning of each shift. This included counting
the narcotics such as Fentanyl. At the beginning of one of his shifts as a paramedic, Plaintiff
signed off on drug inventory sheets counting an incorrect number of Fentanyl vials on his
ambulance. (ECF No. 103-1, Bailey Dep. at 167:11-22.) Plaintiff was questioned by Battalion
Chief Fox about his failure to accurately inventory the Fentanyl, and Plaintiff acknowledged his
error. (Id. at 167:16-168:14.) About a month later, Plaintiff again failed to correctly to account
for the number of vials of Fentanyl on his ambulance. (Id. at 173:4-175:19.) This error was
8

again discovered by his supervisors and another disciplinary meeting was held with Plaintiff and
Battalion Chief Petau to discuss the error. (ECF No. 103-2, Petau Aff. at ¶ 9; ECF No. 103-15,
Oct. 13, 2011 Meeting Transcript Excerpt.) Other paramedics at the Fire Department had
committed this same offense without being subject to disciplinary action. (See ECF No. 114-10,
Oct. 11, 2011 Email.)
During the meeting to discuss Plaintiff’s inventory errors, Plaintiff was also asked about
his experience working with B-Shift. (ECF No. 103-15, Oct. 13, 2011 Meeting Transcript
Excerpt.) Bailey explained that his co-workers on B-Shift were “overwhelmingly . . . very
supportive” of him. (Id.) Plaintiff further stated that even though “B-shift is the most
challenging situation for me,” he believed that “it’s the place where I have the best opportunity for
growth.” (Id.) Plaintiff explained that he originally had intended to ask for a shift change, but
that he had changed his mind and wished to stay with B-Shift. (Id.)
On October 11, 2011, Plaintiff’s supervising physician, Dr. Dylan Luyten, withdrew his
approval for Plaintiff to practice as a paramedic, indicating that “it has become apparent that
[Plaintiff] does not possess the experience, knowledge, and skills to function as a paramedic” and
that Plaintiff “has expressed . . . the desire to voluntarily ‘step down’ from the paramedic role.”
(ECF No. 103-9, Dr. Luyten Approval Revocation Letter.) Because Plaintiff lost this certification
of his supervising physician, Plaintiff was no longer qualified or permitted to work in the capacity
of paramedic. Dr. Luyten did preserve Plaintiff’s status as qualified to operate in the capacity as
an emergency medical technician (EMT), and Plaintiff was still qualified to work as a fire fighter.
(Id.)
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The Fire Department also documented several other instances where Plaintiff allegedly
performed below the Fire Department’s standards. In one incident, Plaintiff was instructed to cut
the battery cable of the cars involved in an automobile accident to prevent an electrical fire and to
prevent the air bags from deploying, yet failed to follow this instruction. (ECF No. 103-16, Dec.
7, 2011 Meeting Transcript Excerpt at 1-3.) In another incident, responding to a call to put out a
burning Christmas tree that was left in an alley, Plaintiff did not know how to properly operate the
water extinguisher to put out the fire, despite repeated directives from Lt. Burley on how to operate
it. (ECF No. 103-11, Burley Dep. at 124:8 – 127:19.) After returning to the fire station, Plaintiff
did not know how to fill the extinguisher back up. (Id.) On August 26, 2011, Plaintiff failed to
recognize that an elderly patient needed immediate intervention. (ECF No. 103-8, Bailey
Performance Documentation at 2-3.) On September 6, 2011, Plaintiff inappropriately released a
diabetic patient about whom he was concerned enough to give medication for later use. (Id. at 2.)
On September 8, 2011, it was recorded that Plaintiff’s demeanor and attitude was extremely
abrasive and argumentative towards an elderly patient and his wife when responding to a call.
(Id. at 3.)
On November 3, 2011, while Plaintiff was working with C-Shift covering the shift of a
co-worker, Plaintiff and others responded to a report of a gas odor emanating from a residential
address. (ECF No. 103-1, Bailey Dep. at 183.) Plaintiff was asked by the C-Shift Lieutenant,
Laura Vetos, to check the gas meter on the house for leaks using a combustible gas detector. (Id.
at 184:15- 185:1.) Plaintiff checked the electric meter, not the gas meter, and reported to Lt.
Vetos that the gas meter was not leaking. (Id. at 191:19-192:16.) Lt. Vetos eventually realized
10

that Plaintiff had checked the wrong meter. (Id.) The two then located the correct meter, which
was in fact leaking gas. (Id. at 192.) Plaintiff claims that, prior to being called out to the house to
perform the odor investigation, he had been called in to three separate meetings with his
supervisors to discuss his negative performance and the fact that his job was in jeopardy. (ECF
No. 114-7, Pls.’ Resp. to Defs.’ First Set of Interrogatories at 19-20; ECF No. 103-1, Bailey Dep.
at 190:23-191:8.) As a result, Plaintiff was feeling a tremendous amount of stress and was unable
to concentrate. (Id.)
Once Plaintiff’s supervisors discovered the November 3, 2011 incident, a pre-disciplinary
meeting was held with Plaintiff on December 7, 2011. (See ECF No. 103-16, Dec. 7, 2011
Meeting Transcript Excerpt.) At the meeting, Plaintiff admitted to having checked the wrong
meter. (Id. at 3.) Plaintiff acknowledged that this error created a dangerous situation and that
there was “no excuse” for the mistake, stating that “our job is one that there’s no room for errors
like that.” (Id. at 3.)
The following day, Plaintiff was given a termination letter ending his employment with the
Fire Department. (ECF No. 103-19, Dec. 8, 2011 Termination Letter.) Describing the reasons
for his termination, the letter cited Plaintiff’s failure to correctly inventory the Fentanyl on his
ambulance on August 1, 2011, and again on September 8, 2011 as well as Plaintiff’s failure to
correctly check a gas meter for leaks on November 3, 2011. The termination letter cited the
remedial training Plaintiff was given and his repeated transgressions despite that training.

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III.

ANALYSIS
“‘Congress enacted the [Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq.,] in 1990 to remedy widespread discrimination against’ persons with disabilities.” Smothers
v. Solvay Chem., Inc., 740 F.3d 530, 543 (10th Cir. 2014) (quoting PGA Tour, Inc. v. Martin, 532
U.S. 661, 674 (2001)) (alterations in original). The Tenth Circuit reviews ADA claims under the
analytical framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04 (1973). See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir.
1999); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Ruling on a motion for
summary judgment “[u]nder this framework, the plaintiff has the burden of articulating a prima
facie case of discrimination.” Hardy, 185 F.3d at 1079. To establish a prima facie case of
discrimination under the ADA, Plaintiff must sufficiently show that (1) he is a disabled person as
defined by the ADA; (2) he is qualified, with or without reasonable accommodation, to perform
the essential functions of his job; and (3) he was terminated under circumstances which give rise to
an inference that the termination was based on his disability. Id. (citations omitted). Thus, “[i]f
[Plaintiff] cannot show that there is a genuine issue of triable fact as to any of the elements of the
prima facie case, then the Defendants are entitled to summary judgment.” Koessel v. Sublette
Cnty. Sheriffs Dept., 717 F.3d 736, 742 (10th Cir. 2013). Should Plaintiff establish a prima facie
case, “[t]he burden of production then shifts to the employer to articulate a legitimate
nondiscriminatory reason for taking the adverse action against the plaintiff.” Hardy, 185 F.3d at
1079 (citations omitted). Should the employer carry its burden of showing a nondiscriminatory
reason, “[t]he burden then shifts back to the plaintiff to present evidence such that a reasonable
12

jury could conclude that the proffered nondiscriminatory reason for the employment action is
pretextual, that is, unworthy of belief.” Id. at 1079-80 (citations and quotations omitted).
The City concedes that Plaintiff satisfies the first element of the prima facie ADA
claim—that he is disabled as that term is defined by the ADA—but argues that Plaintiff has not
presented sufficient evidence to create a triable issue of fact as to the second and third factor. For
the reasons explained below, the Court agrees.
A.

Essential Functions

The City argues that Plaintiff was not qualified to perform the essential functions of his job
with or without reasonable accommodations, pointing to several transgressions Plaintiff was cited
for during his tenure with the Fire Department. Specifically, the City points to instances where
Plaintiff (1) incorrectly inventoried the amount of Fentanyl on the ambulance he was assigned to;
(2) failed to cut the battery cable on a vehicle at an accident site after being directed to do so; and
(3) failed to check the gas meter when responding to an odor investigation, accidentally checking
the electrical meter instead. The City argues that, even assuming that Plaintiff would be entitled
to reasonable accommodations, he did not provide the City with the necessary documentation to
determine what accommodations would be necessary, nor was he able to perform the essential
functions of his job under the accommodations that were afforded him. The City further argues
that, as evidenced by Plaintiff’s on-the-job mishaps, Plaintiff presented a danger to himself and
others and, for that reason, could not perform the essential functions of his job.
1.

Direct Threat

Defendants first argue Plaintiff’s ADA claim fails on the grounds that Plaintiff would be
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unable to perform the essential functions of his job, with or without a reasonable accommodation,
without posing a direct threat to himself, his co-workers and the general public. Related to the
determination of whether an employee is qualified, “[u]nder the ADA it is a defense to a charge of
discrimination if an employee poses a direct threat to the health or safety of himself or others.”
Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1291 (10th Cir. 2000) (“A number of courts
have ruled that when there is a direct threat to the health or safety of others, a person is not
‘otherwise qualified’ for employment.”); Justice v. Crown Cork and Seal Co., Inc., 527 F.3d 1080,
1091 (10th Cir. 2008). The term “direct threat” is defined as “a significant risk to the health or
safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3).
Equal Employment Opportunity Commission regulations provide that
[t]he determination that an individual poses a “direct threat” shall be based on . . . a
reasonable medical judgment that relies on the most current medical knowledge
and/or on the best available objective evidence. In determining whether an
individual would pose a direct threat, the factors to be considered include: (1) the
duration of the risk; (2) the nature and severity of the potential harm; (3) the
likelihood that the potential harm will occur; and (4) the imminence of the potential
harm.
29 C.F.R. § 1630.2(r). “Though the burden of showing that an employee is a direct threat
typically falls on the employer, ‘where the essential job duties necessarily implicate the
safety of others, then the burden may be on the plaintiff to show that [he] can perform those
functions without endangering others.’” Justice, 527 F.3d at 1091 (quoting McKenzie v.
Benton, 388 F.3d 1342, 1354 (10th Cir. 2004)) (alterations in original).
Here, in terms of the “medical judgment” required under 29 C.F.R. § 1630.2(r), the
City’s own physician, Dr. Beatty, indicated in a report that Plaintiff did not have any
14

psychological or physiological limitations that would preclude him from performing his
job. (ECF No. 103-6, Mar. 28, 2011 “Fit for Duty Report”.) A separate letter written by
Plaintiff’s personal physician, Dr. David Kresin, states that Plaintiff was not taking any
medications that “would affect the safety of . . . others” and found Plaintiff capable of
performing “full unrestricted duty.” (ECF No. 103-17, Apr. 6, 2011 Kresin
Correspondence.) Despite this, however, the evidence shows that Plaintiff was, in fact, a
danger.
Plaintiff’s job as a fire fighter or paramedic implicates safety considerations
inherently. Despite the medical reports clearing him to work, Plaintiff’s conduct while on
the job demonstrated significant safety risks. Plaintiff’s failure to recognize or
appropriately respond to medical emergencies on September 6, 2011, and August 26, 2011,
evidence safety risks to the public. (ECF No. 103-8, Bailey Performance Documentation
at 2-3.) And no explanation is needed to demonstrate the risks associated with mistaking
an electricity meter for a gas meter and thereby failing to discover an active gas leak.
There is no evidentiary support for any contention that reasonable accommodations
would have reduced the threat posed by Plaintiff. Regardless of which shift he worked – a
suggested accommodation – the dangers associated with the work of a fire fighter,
paramedic or EMT remain. The stressful and dangerous circumstances that one may
encounter in the field are not shift specific. Plaintiff has completely failed to meet his
burden of establishing how his risk-producing conduct would dissipate upon being
afforded any particular reasonable accommodation. Even were this not the case, however,
15

as explained below, Plaintiff’s qualification to perform the essential functions of his job
would be lacking.
2.

Essential Functions and Reasonable Accommodations

The Tenth Circuit has endorsed a two-part analysis to determine whether a person is
qualified to perform the essential functions of his job under the ADA. Davidson v. Am. Online,
Inc., 337 F.3d 1179, 1190 (10th Cir. 2003) (citing Aldrich v. Boeing Co., 146 F.3d 1265, 1271
(10th Cir. 1998)). “First, the court determines whether the individual can perform the essential
functions of the job. Second, if (but only if) the court concludes that the individual is unable to
perform the essential functions of the job, the court determines whether any reasonable
accommodation by the employer would enable him to perform those functions.” Id. As with the
other elements of Plaintiff’s ADA claim, the Tenth Circuit “place[s] the burden on the plaintiff to
show his qualification for a job . . . which is a mixed question of law and fact.” Koessel v. Sublette
Cnty. Sheriffs Dept., 717 F.3d 736, 743 (10th Cir. 2013) (citations omitted).
The City points to on-the-job errors made by Plaintiff to show that he was unable to
perform the essential functions of his job, such as Plaintiff’s failure to cut the battery cable of a
damaged car at an accident cite and Plaintiff’s failure to check a gas meter for leaks during the
course of an odor investigation. Plaintiff, on the other hand, argues that he was able to perform
the essential functions of his job because he “successfully performed as both a firefighter . . . and
[paramedic] for years before he was injured and became depressed” and, prior to his injury,
possessed the necessary experience and training to perform the essential functions of either job.
(ECF No. 114 at 6.) Obviously, Plaintiff’s assertion that he could perform the essential functions
16

of his job prior to the onset of his disability does nothing to establish that he could perform those
functions to the same degree after he allegedly became disabled and his argument is without
merit. 1 The Court finds that the City’s significant record of Plaintiff’s various transgressions
while working as a paramedic and fire fighter is sufficient to show that Plaintiff was unable to
perform the essential functions of his job. The Court must then examine whether Plaintiff could
perform those essential functions with the provision of reasonable accommodations. As to this
second factor, the City argues that Plaintiff cannot sustain his burden because he did not provide
the City with any documentation demonstrating that he needed an accommodation. Plaintiff
counters arguing that the City, not he, failed to engage in the “interactive process” of determining
what accommodations Plaintiff required. The City further argues that it did provide Plaintiff with
various reasonable accommodations, none of which resulted in Plaintiff being able to perform the
essential functions of his job.
Under the ADA, if a disabled employee can perform the essential functions of his job with
a reasonable accommodation, an employer must provide the employee with such an
accommodation. Davidson, 337 F.3d at 1190. In order to determine what reasonable
accommodation is appropriate, “[t]he federal regulations implementing the ADA ‘envision an
interactive process that requires participation by both parties.’” Templeton v. Neodata Servs.,
Inc., 162 F.3d 617, 619 (10th Cir. 1998) (quoting Beck v. Univ. of Wisconsin Bd. of Regents, 75
F.3d 1130, 1135 (7th Cir. 1996)). Indeed, “[a]n employer cannot be expected to propose
reasonable accommodation absent critical information on the employee’s medical condition and
1

Confusingly, Plaintiff then contradictorily posits that the “record is clear that [Plaintiff] could not perform the
essential functions of either position without a reasonable accommodation.” (ECF No. 114 at 6) (emphasis added).

17

the limitations it imposes.” Id.
Here, the record reveals that Plaintiff offered nothing to the City in the way of objective
medical evidence allowing it to determine what accommodations would enable Plaintiff to
perform his job. In October, 2009, Plaintiff was placed on full-time duty as a paramedic after his
physician cleared him to return to active duty. (ECF No. 27 at ¶ 13.) In March, 2011, when
Plaintiff revealed to Lt. Burley that he was suffering from depression, Plaintiff was taken for an
evaluation by the City’s physician, Dr. Beatty. (ECF No. 103-13, Fox Dep. at 66:1-5.) Dr.
Beatty completed a report that did not indicate that Plaintiff had any limitations on his ability to
work due to his depression and that his depression was “well controlled with medication.” (ECF
No. 103-6, Mar. 28, 2011 “Fit for Duty Report” at 2.) The City then went further in an effort to
properly evaluate Plaintiff’s potential need for accommodation, providing Plaintiff with a letter
that he could give to his medical providers in order to solicit information relating to his disability
and what limitations Plaintiff’s condition imposed on his work. (ECF No. 103-14, Eaton Dep. at
44:1-45:1; ECF No. 103-7, Mar. 30, 2011 Correspondence.) However, Plaintiff never gave the
City any evaluations that were completed by his personal physicians. Instead, shortly before his
termination, Plaintiff indicated that his physician had cleared him to work “full duty.” (ECF No.
103-14, Eaton Dep. at 45:8.) Plaintiff subsequently produced a letter from his physician in the
course of this litigation indicating the same. (ECF No. 103-17, Apr. 6, 2011 Kresin
Correspondence.) The record is thus devoid of objective medical evidence in the possession of
the City indicating that Plaintiff had any restrictions on his ability to work due to his disabilities,
and the doctor’s report obtained by the City would indicate the contrary. When the City asked
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Plaintiff to provide further information from his personal care providers regarding his limitations,
Plaintiff failed to do so. Plaintiff’s “failure to provide medical information necessary to the
interactive process precludes [him] from claiming that the employer violated the ADA by failing
to provide reasonable accommodation.” Templeton, 162 F.3d at 619; see also Steffes v. Stepan
Co., 144 F.3d 1070, 1073 (7th Cir. 1998) (noting that when the employee “fail[s] to hold up her
end of the interactive process by clarifying the extent of her medical restrictions, [the employer]
cannot be held liable for failing to provide reasonable accommodations”).
In any event, the City has pointed to numerous reasonable accommodations that were
provided to Plaintiff. After Plaintiff complained of “burnout” from his duties as a paramedic and
requested to be assigned shifts as a fire fighter, that request was honored and Plaintiff was placed
in some shifts as a fire fighter by Lt. Burley. (ECF No. 103-1, Bailey Dep. at 80:7-11; ECF No.
103-11, Burley Dep. at 115:11 – 116:1.) After Plaintiff’s difficulties performing basic fire fighter
duties were observed, Plaintiff was put on light duty, with full pay and benefits, and was provided
with additional training. (Id. at 155:2-5; ECF No. 103-13, Fox Dep. at 75:23-25; ECF No. 103-2,
Petau Aff. at ¶ 7.) When Plaintiff eventually returned to his duties as paramedic, the City
assigned a veteran paramedic to work with him in order to support him and help him improve his
abilities. (ECF No. 103-1, Bailey Dep. at 159:23-160:23; ECF No. 103-2, Petau Aff. at ¶ 8.) See
Gonzagowski v. Widnall, 115 F.3d 744, 747 (10th Cir. 1997) (“[a]dditional training might be a
reasonable accommodation” depending on the circumstances). Despite these efforts to help
Plaintiff improve his performance, Plaintiff continued to commit errors.
Plaintiff argues that he requested certain other accommodations that were not granted.
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Specifically, Plaintiff claims to have requested that he be transferred from B-Shift to his old
position on C-Shift and that he be assigned to work as a drive operator engineer, or driver.
However, Plaintiff’s purported requests for accommodations are either not borne out by the facts
in the record or were not reasonable.
Although an employer is obligated to transfer an employee where a different position is
available, Koessel, 717 F.3d at 745, the record indicates that Plaintiff never explicitly requested to
be transferred to C-Shift at any time after he was transferred to B-Shift. To the contrary, in a
disciplinary meeting with Plaintiff and his supervisors on October 13, 2011, Plaintiff was directly
asked about his status working on B-Shift and affirmed his desire to stay on that shift. (ECF No.
103-15, Oct. 13, 2011 Meeting Transcript Excerpt; see also ECF No. 103-1, Bailey Dep. at
122:2-4.) Further, nothing in the record indicates that Plaintiff’s disability would be better
accommodated if he were transferred to C-Shift. To the extent Plaintiff desired to be transferred
to C-Shift merely because he did not like his manager in B-Shift, this would not be a legitimate
reason for such an accommodation. Weiler v. Household Fin. Corp., 101 F.3d 519, 526 (7th Cir.
1996); Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996) (failure to
assign employee to work under different supervisor did not violate reasonable accommodation
requirement of ADA).
As to Plaintiff’s request that he be accommodated by being placed into the position of
driver, this is not a reasonable accommodation because it would be considered a promotion.
(ECF No. 103-11, Burley Dep. at 52:2-12.) Koessel, 717 F.3d at 745 (“employers need not
promote an employee when they reassign him . . . [but] are required to consider only lateral
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transfers or, if none are available, demotions”). In any event, there is no evidence in the record
showing that a driver position was even available. Id. (“employers are only required to reassign
employees to existing vacant positions”). Instead, the record shows that Plaintiff was temporarily
assigned to driver while the regular driver was out on leave. When the regular driver returned to
full time duty, he resumed his position as driver and Plaintiff was returned to his original duty as
paramedic.
Based on the foregoing, Plaintiff has not sustained his burden of establishing the second
element of a prima facie ADA claim, in that he has not demonstrated the existence of a triable issue
of fact as to whether he could perform the essential functions of his job as fire fighter or paramedic,
with or without reasonable accommodations.
B.

Termination Based on Disability

The third element of the prima facie ADA claim requires that Plaintiff “present some
affirmative evidence that disability was a determining factor” in the City’s decision to terminate
his employment. Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1259 (10th Cir. 2001) (citing
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). Plaintiff’s burden in this regard is
“‘not onerous,’ but it is also ‘not empty or perfunctory.’” Id. (quoting Morgan, 108 F.3d at 1323).
If Plaintiff is able to meet this burden, it then “shifts to the employer to offer a legitimate,
nondiscriminatory reason for the challenged action.” Id. (citing Butler v. City of Prairie Vill., Kan.,
172 F.3d 736, 747 (10th Cir. 1999). Should the City succeed in articulating such a reason, the
burden then shifts back to Plaintiff to show that the City’s purported reason “is merely a pretext for
unlawful discrimination on the basis of [his] disability.” Id. (citing Butler, 172 F.3d at 747).
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Although analysis of this factor is not required in this case in light of Plaintiff’s failure to
satisfy the second element, the Court will nonetheless engage in the analysis as it affords an
additional grounds for granting the summary judgment motion. Considering Plaintiff’s argument
that his disability was a determining factor in the City’s decision to terminate his employment, the
Court finds that, arguendo, Plaintiff has presented sufficient evidence to establish a material issue
of fact, noting that his burden at this stage is “not onerous.” Selenke, 248 F.3d at 1259. Thus, the
burden now shifts to the City to offer a legitimate, nondiscriminatory reason for terminating
Plaintiff’s employment. In support, the City offers the letter that was provided to Plaintiff on the
day he was fired, which explains several instances of Plaintiff’s poor performance that led the City
to its decision. (ECF No. 103-19, Dec. 8, 2011 Termination Letter.) Specifically, that letter
states that the City decided to terminate Plaintiff’s employment based on his failure to correctly
inventory the Fentanyl on his ambulance on two occasions in a one month period and the occasion
when Plaintiff accidentally checked an electric meter when he was instructed to check a gas meter
for leaks. (Id.) The letter further cites to the remedial training that Plaintiff was given in an
attempt to bring him back to a performing capacity and Plaintiff’s repeated failure to meet the Fire
Department’s standards in spite of that training. The Court finds that this evidence is sufficient to
sustain the City’s burden; that burden now shifts to Plaintiff to demonstrate that the City’s
proffered reasons for Plaintiff’s termination are mere pretext.
Plaintiff points to the fact that other paramedics had committed the same error when
performing inventory checks on their respective ambulances yet had not been disciplined for the
error, citing an internal email among Plaintiff’s supervisors where it is noted that “many of our
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medics have committed a similar offense in the past several years and, to my knowledge, have not
suffered any discipline for a similar neglect of duty.” (ECF No. 114-10, Oct. 11, 2011 Email.)
In the context of an ADA claim, “[a] satisfactory showing that similarly situated employees, who
do not belong to the protected class, were treated differently with regard to violation of a work rule
could . . . len[d] support to the pretext argument.” Morgan, 108 F.3d at 1324; see also Smothers,
740 F.3d at 541 (“When comparing different treatment of similarly-situated employees . . . the
violations need only be of comparable seriousness.”) (citations omitted).
Taken in isolation, the Court might agree that the City’s decision to fire Plaintiff based
solely on his failure to correctly inventory drugs would be a good indicator that this reason was
pretextual. However, the City’s reasons for firing Plaintiff were not based exclusively on
Plaintiff’s difficulties inventorying drugs but were manifold, as described in the letter provided to
Plaintiff on the day of his termination. (ECF No. 103-19, Dec. 8, 2011 Termination Letter.)
That letter cites to his failure to check a gas meter for leaks, instead checking the electric meter, as
one of the reasons for his termination. The letter also records the various attempts to provide
Plaintiff with remedial training in an effort to bring his performance back up to satisfactory
standards and Plaintiff’s repeated transgressions despite that training. The record before the
Court is also replete with other instances, dutifully recorded by the Fire Department, where
Plaintiff’s performance was inadequate. These issues, when viewed as a whole, justify the City’s
conclusion that allowing Plaintiff to remain in his position could create future liability for the City,
as future mishaps by Plaintiff could lead to Plaintiff’s own injury, the injury of his co-workers or
the injury of members of the public. (See ECF No. 114-16, Nov. 30, 2011 Email.) The City’s
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reasoning is confirmed in an internal email among Plaintiff’s supervisors, stating that the multiple
negative reviews Plaintiff received show that Plaintiff “poses a serious risk to himself, his
co-workers, and the community in his role as an emergency responder.” (Id.) Indeed, the email
Plaintiff cites to for the proposition that he was treated differently from other employees who
similarly failed to properly inventory drugs specifically concludes that, based only on this one
transgression, that Stovall was “not in favor of termination, at this time.” (ECF No. 114-10, Oct.
11, 2011 Email.) (emphasis removed). It was only later, after numerous, more severe instances of
Plaintiff’s inability to perform were documented and viewed as a whole, did the City make the
determination that it would be required to terminate Plaintiff’s employment. Plaintiff has not
satisfied his burden of demonstrating that the City’s legitimate reasons for his termination were
mere pretext. 2
IV.

CONCLUSION
Based on the foregoing, it is ORDERED that Defendant’s Motion for Summary Judgment

(ECF No. 103) is GRANTED. The Clerk of the Court is directed to enter JUDGMENT in
Defendant’s favor.

2

The fact that Pattarozzi, one of Plaintiff’s supervisors who was responsible for terminating his employment, also
suffered from depression himself would tend to “undermine[] any suggestion of pretext.” Estate of Bassatt v. School
Dist. No. 1 in the City and Cnty. of Denver, et al., 775 F.3d 1233, 1241 (10th Cir. 2014) (citing Elrod v. Sears, Roebuck
& Co., 939 F.2d 1466, 1471 (11th Cir. 1991) (plaintiff failed to show pretext in part because decision makers were in
the same protected class as plaintiff))

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DATED this 10th day of July, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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