Perez v. Denver Fire Department et al

Filing 16

ORDER granting in part and denying in part 7 Defendants' Motion to Dismiss. Plaintiff's ADA claim will proceed and his USERRA claim is dismissed. By Magistrate Judge Craig B. Shaffer on 12/22/2015. (cbslc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00457-CBS
DAVID PEREZ,
Plaintiff,
v.
DENVER FIRE DEPARTMENT
CITY AND COUNTY OF DENVER,
Defendant.

ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS

Magistrate Judge Shaffer
This matter comes before the court on a Motion to Dismiss (Doc. 7) filed on July 23,
2015, by Defendant City and County of Denver (the “City”). Pursuant to the Order of Reference
dated March 4, 2015, this civil action was referred to the Magistrate Judge. This court has
carefully considered the motion and related briefing, the entire case file, and applicable case law.
For the following reasons, the court grants in part and denies in part the motion.
BACKGROUND
David Perez (“Plaintiff”), appearing pro se, brings this action pursuant to the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §§ 12102 et seq., and the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311. The action arises
out of Mr. Perez’s employment with the Denver Fire Department (“DFD”). Plaintiff seeks a
declaratory judgment, as well as compensatory and consequential damages.
Plaintiff has been employed by the City as a full-time paid firefighter since December 1,
2006. Id. at ¶¶ 14, 34. Prior to Plaintiff’s employment with DFD, he served 8 years on active

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duty with the United States Marine Corps. Id. at ¶ 13. Plaintiff is currently in his third year of
service in the Selected Marine Corps Reserve (the “Reserves”). Id.
On August 17, 2011, Plaintiff was assigned to Engine Company 9 at Denver Fire Station
9 (“Station 9”), under the supervision of Captain Randy Wells. Id. at ¶ 15. Plaintiff and his crew
were dispatched in response to a truck fatally running over a young child. Id. After the call,
Captain Wells asked Plaintiff if he was okay and Plaintiff said he was. Id.
Later that day, Engine Company 9 attended an EMS training on the application of
tourniquets in the field. Id. at ¶ 16. The training materials included pictures and statistics from
military combat operations in Iraq and Afghanistan. Id. During the training, Plaintiff became
visibly upset and left the room. Id. at ¶ 17. Firefighter Mike Morris and Captain Wells followed
Plaintiff outside and asked if he was okay. Id. Plaintiff said he was but “just needed some time to
let things out.” Id. After the training, Captain Wells and Lieutenant Bob Miller approached
Plaintiff to discuss his ability to perform his duties considering the day’s events. Id. at ¶ 19.
Plaintiff decided to go home for the remainder of his shift but first met with the crew of Engine 9
and Truck 9 to explain that he had been upset earlier that day because of the “loss of his fellow
Marines during his combat tours and how the combination of the day’s events made him
emotional and brought back those memories.” Id. at ¶ 20.
On August 28, 2011, Captain Wells wrote a letter without Plaintiff’s knowledge to
Assistant Chief Daniel Garcia requesting that Plaintiff be evaluated for Post-Traumatic Stress
Disorder (“PTSD”). Id. at ¶ 22. Prior to this request, Plaintiff had “never disclosed to the DFD or
the City that he was scene [sic], evaluated, diagnosed and/or treated for PTSD by the Veterans
Administration [sic] (VA) or any other medical authority.” Id. On September 7, 2011, DFD
Administration contacted Plaintiff regarding the request for evaluation. Id. at ¶ 24. At that time,

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Plaintiff disclosed to Administration Chief Tony Berumen that he was “seeking therapy
treatment through the [VA] and that an additional evaluation was not needed.” Id. at ¶ 25. On
September 28-29, 2011, Plaintiff underwent a “Fit-For-Duty” evaluation which determined that
he was “fit for duty with considerations.” Id. at ¶ 26. On October 1, 2011, a day which Plaintiff
was not scheduled to work, Captain Wells convened a meeting with the firefighters at Station 9
allegedly “to discuss [Plaintiff] having PTSD and get the opinion of other firefighters in regards
to [Plaintiff] having PTSD.” Id. ¶ 27. Plaintiff further claims that Captain Wells informed the
firefighters at that meeting that he had submitted a letter requesting Plaintiff be evaluated for
PTSD. Id.
Plaintiff accepted an administrative transfer from Engine Company 9 to the Fire
Prevention Division where he worked as a Hazards Material Inspector from October 10, 2011 to
April 13, 2012. Id. at ¶¶ 28-29. On December 2, 2011, Plaintiff intended but ultimately
reconsidered resigning from his job because he “felt he was wronged with all the actions that
took place when he was assigned to Engine Company 9 and [he] didn’t want to find himself in
that kind of environment again.” Id. at ¶ 29.
On April 16, 2012, Plaintiff started a new assignment at Engine Company 23, headed by
Captain Derek Warlum and with Lieutenant Scott Reeves as his direct supervisor. Id. at ¶ 31. On
February 20, 2013, Administration Chief Tony Berumen wrote an Internal Correspondence letter
to Plaintiff that concerned information provided by Captain Warlum regarding Plaintiff’s
“comments about special favors being made by DFD Administration and his need for leave
during his [Reserve] military training for 5 months.” Id. at ¶ 32. Plaintiff responded in a
subsequent Internal Correspondence letter by “[discrediting] the accusations made in the initial
letter.” Id. After Plaintiff disputed the allegations, he learned of a conversation between

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Lieutenant Reeves and Captain Warlum in which they “questioned [Plaintiff’s] position as a
firefighter and had stated ‘what does he want to do, be a firefighter or be a reservist.’” Id. at ¶ 33.
Plaintiff subsequently requested a transfer to Engine Company 12, where he is currently
assigned. Id. at ¶ 34.
In the Complaint, Plaintiff contends that Defendant violated ADA § 102(d), 42 U.S.C. §
12112(d), by disclosing confidential medical information concerning his PTSD condition during
a meeting with Station 9 firefighters convened two days after Plaintiff completed a “Fit-forDuty” evaluation. (Doc. 1 at ¶¶ 12, 27). Plaintiff also alleges that his supervisor’s comment,
“what does he want to do, be a firefighter or be a reservist,” violated USERRA § 4311, which
prohibits discrimination on the basis of military service. Id. at ¶ 32. In its Motion to Dismiss,
Defendant argues that DFD communicated medical information that Plaintiff voluntarily
disclosed outside the context of an employment-related medical examination or inquiry, thus
shielding the City from liability under ADA §102(d). (Doc. 7 at 4). Defendant further argues that
Plaintiff’s USERRA claim should be dismissed because Plaintiff fails to allege an adverse
employment action in the Complaint, maintaining that “a single remark related to Plaintiff’s
military service is not an adverse employment action as contemplated by USERRA.” Id. at 8.
Similarly, Defendant argues that Plaintiff fails to allege a hostile work environment claim
because “a single remark from a single person in command staff” does not meet the severity or
pervasiveness standard. Id.

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ANALYSIS
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a
complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.
12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all wellpleaded factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court is not, however, “bound to
accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In addition, this court may consider exhibits attached to the complaint without converting
the motion into one for summary judgment pursuant to Rule 56. See Hall v. Bellmon, 935 F.2d
1106, 1112 (10th Cir. 1991).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id. A claim is plausible
when the plaintiff “pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. This standard requires more than the
sheer possibility that a defendant has acted unlawfully. Id. Facts that are “merely consistent”
with a defendant’s liability are insufficient. Id. “[T]o state a claim in federal court, a complaint
must explain what each defendant did to him or her; when the defendant did it; how the
defendant’s actions harmed him or her; and what specific legal right the plaintiff believes the
defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges

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facts supporting all the elements necessary to establish an entitlement to relief under the legal
theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Because Mr. Perez is not an attorney, his pleadings and other papers have been construed
liberally and held to a less stringent standard than formal pleadings drafted by a lawyer. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21
(19972)). Therefore, “if the court can reasonably read the pleadings to state a claim on which the
plaintiff could prevail, it should do so despite the plaintiff’s failure to cite proper authority, his
confusion of legal theories, his poor syntax and sentence construction, or his unfamiliarity with
pleading requirements.” Id. However, this court cannot act as a pro se litigant’s advocate. Id. It
is the responsibility of the pro se plaintiff to provide a simple and concise statement of his claims
and the specific conduct that gives rise to each asserted claim. See Willis v. MCI Telecomms., 3
F. Supp. 2d 673, 675 (E.D.N.C. 1998). This court may not “supply additional factual allegations
to round out a plaintiff’s complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74
(10th Cir. 1997). Nor may a plaintiff defeat a motion to dismiss by alluding to facts that have not
been alleged, or by suggesting violations that have not been plead. Associated General
Contractors of California Inc. v. California State Council of Carpenters, 459 U.S. 519, 526
(1983).
A. ADA Claim
The Court concludes that at this stage of litigation, Plaintiff has sufficiently alleged that
his employer improperly disclosed confidential medical information in violation of ADA §
102(d). Section 102(d) of the ADA governs “medical examinations and inquiries.” 42 U.S.C. §
12112(d). That section applies to inquiries made at three distinct phases: (1) pre-employment; (2)
post-offer; and (3) during the employment relationship. Id.; E.E.O.C. v. C.R. England, Inc., 644

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F.3d 1028, 1046 (10th Cir. 2011). During the employment relationship, employers are prohibited
from making disability-related inquiries of employees, unless the inquiry is “job-related and
consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). This provision applies to all
employees rather than just qualified individuals with disabilities. Roe v. Cheyenne Mountain
Conference Resort, Inc. 124 F.3d 1221, 1229 (10th Cir. 1997).
All medical information obtained as a result of an inquiry permitted under ADA § 102(d)
must be kept confidential and can only be disclosed to a limited group of individuals, such as the
employee’s supervisors or managers. 42 U.S.C. § 12112(d)(4)(C); 29 C.F.R. § 1630.14. A
disclosure of this information in violation of § 102(d) gives rise to a claim under the ADA. C.R.
England, Inc., 644 F.3d at 1046. However, an employee’s voluntary disclosure of medical
information outside the context of an authorized employment-related medical inquiry is not
protected under § 102(d). Id. at 1047. Additionally, the ADA requires a plaintiff to present
evidence of a tangible injury legally and proximately caused by a technical violation of § 102(d).
See Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 963 (10th Cir. 2002)
(citing Griffin v. Steeltek, Inc., 261 F.3d 1026. 1028-29 (10th Cir. 2001)).
1. Authorized Medical Inquiry
In order for a disclosure to be confidential under § 102(d), it must be obtained through an
authorized medical inquiry rather than voluntarily disclosed by the employee. In determining
whether a disclosure is voluntary, courts have focused on which party initiates the employee’s
actual disclosure of medical information. E.E.O.C. v. Thrivent Fin. for Lutherans, 795 F. Supp.
2d 840, 845 (E.D. Wis. 2011) aff’d 700 F.3d 1044 (7th Cir. 2012); compare Cash v. Smith, 231
F.3d 1301, 1307 (11th Cir. 2000) (concluding employee’s disclosure made “in confidence” was
still voluntary when it was not done pursuant to a FMLA request nor in response to specific

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questioning), and Sherrer v. Hamilton County Bd. of Health, 747 F. Supp. 2d 924, 933-34 (S.D.
Ohio 2010) (concluding employer’s question, “Is everything okay?” did not rise to the level of a
medical inquiry), and Ross v. Advance Am. Cash Advance Centers, Inc., 605 F. Supp. 2d 1025,
1032-33 (E.D. Ark. 2009) (concluding employee’s disclosure was voluntary when it was done to
explain why she requested time off rather than pursuant to an inquiry into her ability to perform
job-related functions); with Doe v. U.S. Postal Serv., 317 F. 3d 339, 345 (D.C. Cir. 2003)
(concluding employer made a medical inquiry when it threatened employee with discipline
unless he completed a medical-leave form explaining the nature of his medical condition), and
Kingston v. Ford Meter Box Co., No. 3:07-CV-270 RM, 2009 WL 981333, at *11 (N.D. Ind.
Apr. 10, 2009) (concluding employee’s disclosure was voluntary when he disclosed his medical
condition prior to a discussion with employer about his need for reasonable accommodations).
Fitness for duty exams are considered equivalent to medical examinations under this provision.
See 29 C.F.R. Pt. 1630, App. § 1630.13(b); Medlin v. Rome Strip Steel Co., 294 F. Supp. 2d 279,
293-94 (N.D.N.Y. 2003).
Here, Captain Wells formally requested the Fit-For-Duty evaluation as a result of the
August 17, 2011 incident when Plaintiff left work early after becoming visibly upset while
performing routine job tasks that caused him to reflect on his military service. (Doc. 1 at ¶¶ 19,
22). A Fit-For-Duty evaluation clearly constitutes an authorized employment-related medical
inquiry, which triggers the confidentiality requirement. In response to the evaluation request,
Plaintiff disclosed his PTSD condition to the DFD Administration Chief, as well as during the
subsequent evaluation itself. Id. at ¶¶ 25-6. Therefore, the Plaintiff has sufficiently alleged that
the medical information obtained by DFD was subject to the confidentiality requirement.

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2. Disclosure of Confidential Medical Information
Although Plaintiff’s factual allegations are barely sufficient to assert an improper
disclosure of confidential medical information, the Court must view the allegations contained in
the pro se Complaint in the light most favorable to the non-moving party. While the Complaint
does not explicitly state that Captain Wells relied on the information obtained through the exam,
it does allege that Captain Wells convened the meeting with Station 9 firefighters two days after
Plaintiff completed the Fit-For-Duty evaluation. Id. at ¶ 27. Additionally, the Complaint alleges
the meeting was called “to discuss [Plaintiff] having PTSD and get the opinion of other
firefighters in regards to [Plaintiff] having PTSD.” Id. The temporal proximity of the exam and
the meeting coupled with the alleged purpose of the meeting provides a plausible inference that
Captain Wells disclosed information obtained through the authorized medical inquiry.
Defendant’s contention that Plaintiff voluntarily disclosed his PTSD condition during the
conversation with Station 9 firefighters on August 17, 2011 is not supported by the Complaint.
Plaintiff specifically alleges in the Complaint that prior to being made aware of the evaluation
request he never discussed his PTSD condition with DFD or the City. Id. at ¶ 22. Additionally,
the Complaint does not allege that during the conversation Plaintiff specifically used the term
“PTSD” or revealed his medical diagnosis. Id. at ¶ 20. Furthermore, the manner in which Captain
Wells learned of Plaintiff’s medical condition is a question of fact not appropriate for resolution
on a motion to dismiss. Plaintiff has sufficiently alleged that Defendant illegally disclosed his
confidential medical information in violation of the confidentiality provision of the ADA.

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3.

Tangible Injury

A plaintiff must also allege a tangible injury resulting from the disclosure. Again, the
Court notes the sparseness of the Complaint’s factual allegations. However, the Court determines
that this aspect of the claim is best analyzed on a fuller factual record.
“Injury-in-fact encompasses both actual damages in the form of emotional, pecuniary,
compensative, or otherwise, as well as the presence of a continuing illegal practice.” Green v.
Joy Cone Co., 278 F. Supp. 2d 526, 537 (W.D.Pa.2003) (quoting Tice v. Ctr. Area Transp. Auth.,
247 F.3d 506, 519 (3d Cir. 2001)). Courts have held that the tangible injury requirement is met
whenever an articulable injury can be identified. See, e.g., E.E.O.C. v. Ford Motor Credit Co.,
531 F. Supp. 2d 930, 942 (M.D. Tenn. 2008) (concluding that Plaintiff demonstrated a tangible
injury when he took a leave of absence after finding out about the disclosure and admitted to
suffering shame, embarrassment and depression as a result of the disclosure); Shoun v. Best
Formed Plastics, Inc., 28 F. Supp. 3d 786, 790 (N.D. Ind. 2014) (concluding on a motion to
dismiss that Plaintiff satisfied the tangible injury requirement when he alleged that as a result of
the disclosure prospective employers refused to hire him and he suffered emotional injury);
Franklin v. City of Slidell, 936 F. Supp. 2d 691, 710-11 (E.D. La. 2013) (concluding that a
tangible injury could not be found when Plaintiff failed to specify how he was damaged by the
disclosure of his medical information).
Here, the Complaint alleges that the fire station became a “hostile work environment” for
Plaintiff after Captain Wells held the meeting with Station 9 firefighters. Id. at ¶ 20.
Additionally, the Complaint alleges that the “current conditions and the unwarranted actions
taken by [Captain Wells]” prompted Plaintiff to accept a transfer to a support division even
though the work schedule was less desirable. Id. at ¶ 28. The Complaint further alleges that on

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December 2, 2011, Plaintiff intended but ultimately reconsidered resigning from his job because
he “felt he was wronged with all the actions that took place when he was assigned to Engine
Company 9 and [he] didn’t want to find himself in that kind of environment again.” Id. at ¶ 29.
Therefore, Plaintiff has sufficiently alleged that the disclosure caused him a tangible injury.
B. USERRA Claim
Plaintiff has failed to sufficiently allege either that his employer discriminated against
him on the basis of his military service or that his employer’s conduct created a hostile work
environment. Section 4311 of USERRA prohibits employment discrimination against service
members based on their military service. See 38 U.S.C. § 4311(a). USERRA must be broadly
construed in favor of its military beneficiaries. Quick v. Frontier Airlines, Inc., 544 F. Supp. 2d
1197, 1206-07 (D. Colo. 2008) (citing Hill v. Michelin N. Am., Inc., 252 F.3d 307, 313 (4th
Cir.2001)). The anti-discrimination subsection, § 4311(a), provides:
(a) A person who is a member of, applies to be a member of, performs, has
performed, applies to perform, or has an obligation to perform service in
a uniformed service shall not be denied initial employment,
reemployment, retention in employment, promotion, or any benefit of
employment by an employer on the basis of that membership,
application for membership, performance of service, application for
service, or obligation
38 U.S.C. § 4311(a). An adverse employment action under USERRA imposes the same
materiality requirement found in other civil rights statutes addressing employment
discrimination. See e.g., Crews v. City of Mt. Vernon, 567 F.3d 860, 869 (7th Cir. 2009) (“There
is no reason to understand ‘adverse employment action’ differently in the USERRA context.”).
In the Tenth Circuit, to satisfy the materiality requirement, an adverse employment action must
have caused more than “de minimis harm” to or a “de minimis impact” upon an employee’s job

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opportunities or status. E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1040 (10th Cir. 2011)
(quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir.2004)).
While the Tenth Circuit has not addressed whether USERRA provides a cause of action
for hostile work environments, other courts who have confronted the question have found that
USERRA does provide for a hostile work environment cause of action analogous to the one
authorized by Title VII. See, e.g., Otero v. New Mexico Corr. Dep’t, 640 F. Supp. 2d 1346, 1358
(D.N.M. 2009); Vickers v. City of Memphis, 368 F. Supp. 2d 842, 845 (W.D. Tenn. 2005)
(concluding that hostile work environment claims falls under the broad interpretation of the term
“benefit”). “To succeed on a hostile work environment claim, [plaintiff] must offer evidence that
defendants’ conduct was sufficiently severe or pervasive to alter the conditions of employment
and create an abusive working environment.” Conners v. Billerica Police Dep't, 679 F. Supp. 2d
218, 227 (D. Mass. 2010). When evaluating whether a work environment is “hostile” or
“abusive” courts look to factors such as (1) the frequency of the discriminatory conduct; (2) its
severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance;
and (4) whether it unreasonably interferes with an employee’s work performance. Conners, 679
F. Supp. 2d at 228 (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993)).
Here, the Complaint does not allege that Plaintiff was terminated or that the Internal
Correspondence letter was a disciplinary action; indeed, Plaintiff is still employed as a firefighter
with DFD. Id. at ¶ 34. Additionally, the Complaint does not allege any facts that suggest
Defendant attempted to deny Plaintiff reemployment after his upcoming military training, a
promotion, or any benefit of employment, through the Internal Correspondence letter or any
other conduct. Id. at ¶¶ 31-4. In short, Plaintiff has failed to allege sufficient facts to establish
Defendant discriminated against him based on his military service.

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Also, the Complaint fails to provide any factual allegations to support a hostile work
environment claim under any of the previously mentioned factors. The Complaint only
references two instances (the Internal Correspondence letter and Captain Warlum’s single
statement) where Plaintiff’s reservist status was directly at issue. Id. at ¶¶ 32-3. Plaintiff received
the Internal Correspondence letter almost a full year after starting his assignment under Captain
Warlum’s supervision. Id. at ¶¶ 31-2. The Complaint does not allege that Plaintiff suffered any
disciplinary action as a result of receiving the letter. Id. at ¶¶ 31-4. Additionally, the Complaint
only alleges one negative statement made by Captain Warlum about Plaintiff’s reservist status.
Id. at ¶ 33. The Complaint does not allege facts that suggest Plaintiff felt physically threatened or
humiliated by Captain Warlum’s statement. Id. Moreover, although the Complaint states Plaintiff
submitted another personal transfer as a result of the environment, it does not allege that Plaintiff
did so because the environment unreasonably interfered with Plaintiff’s work performance. Id. at
¶ 34. As a result, Plaintiff has failed to allege sufficient facts to establish that Defendant’s
conduct was so severe and pervasive to constitute a hostile work environment.
Consequently, Plaintiff has failed to allege a USERRA violation; the court, therefore,
concludes that Defendant’s motion to dismiss Plaintiff’s USERRA claim for failure to state a
claim should be granted.
CONCLUSION
For the foregoing reasons, it is ORDERED that Defendants’ Motion to Dismiss (Doc. 7)
is GRANTED in part and DENIED in part. Plaintiff’s ADA claim will proceed and his USERRA
claim is dismissed.

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DATED at Denver, Colorado, this 22nd day of December, 2015.
BY THE COURT:

s/Craig B. Shaffer__________
United States Magistrate Judge

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