Perez v. Denver Fire Department et al

Filing 60

MEMORANDUM OPINION by Magistrate Judge Craig B. Shaffer on 3/20/17 DENYING 45 Plaintiff David Perez's (Motion) Request for Leave of Court to Amend Complaint; and GRANTING 37 Defendant City and County of Denver's Motion for Summary Judgment. (nmarb, )

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, and
CITY AND COUNTY OF DENVER,
Defendants.

MEMORANDUM OPINION REGARDING DEFENDANT’S
FOR SUMMARY JUDGMENT and
PLAINTIFF’S REQUEST FOR LEAVE TO AMEND COMPLAINT

Magistrate Judge Shaffer
This Memorandum Opinion addresses the following motions: (1) Defendant City and
County of Denver’s Motion for Summary Judgment (doc. #37) and (2) Plaintiff David Perez’s
Request for Leave of Court to Amend Complaint (doc. #45). Both of these motions have been
fully briefed. The parties consented (doc. #22) to the magistrate judge’s jurisdiction to “conduct
all further proceedings in this civil action, including trial, and to order the entry of a final
judgment,” pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2.
Accordingly, the case was referred to this court on January 26, 2016. After carefully considering
the parties’ briefs and attached exhibits, the entire case file, and the applicable law, this court
will grant Defendant’s motion for summary judgment and deny Plaintiff’s motion for leave to
amend his Complaint.

1

PROCEDURAL BACKGROUND
Mr. Perez commenced this action on March 4, 2015 with the filing of a pro se Complaint
(doc. #1) that asserted claims under the Americans with Disabilities Act (ADA), 42 U.S.C. §
12101, et seq., and the Uniformed Services Employment and Reemployment Act of 1994
(USERRA), 38 U.S.C. §§ 4301-4335. Mr. Perez asserts that he had been employed by the City
and County of Denver as a full-time paid firefighter since December 1, 2006, and that prior to his
employment with the Denver Fire Department, he served on active duty with the United States
Marine Corps for eight years. Plaintiff states that he is still serving in the Selected Marine Corps
Reserve. In his Complaint, Mr. Perez contends that Defendant City and County of Denver
violated ADA § 12112(d) by disclosing confidential medical information to his co-workers. See
Complaint, at ¶¶ 12, 27. Plaintiff also alleged that his supervisor violated USERRA § 4311,
which prohibits discrimination on the basis of military service. Id. at ¶ 32.
On January 26, 2016, this court entered an Order (doc. #24) granting in part and denying
part a Motion to Dismiss (doc. #7) filed by Defendant City and County of Denver.1 On a motion
to dismiss under Fed. R. Civ. P. 12(b)(6), the court is required to “view the allegations contained
in the pro se Complaint in the light most favorable to the non-moving party.” However, I
observed that “Plaintiff’s factual allegations [in his Complaint] are barely sufficient to assert an
improper disclosure of confidential medical information.”

1

This court initially addressed Defendant’s motion in an Order entered on December 22,
2015. I vacated that Order on January 15, 2016 and reinstated Defendant’s motion to dismiss
when the parties failed to file the required Consent/Non-Consent form in a timely manner. See
Order Withdrawing Order (doc. #19). After the parties formally consented to magistrate judge
jurisdiction on January 25, 2016 (doc. #22), the court re-issued its Order Regarding Defendant’s
Motion to Dismiss (doc. #24) on January 26, 2016.
2

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. Additionally, the Complaint does not allege that
during the conversation Plaintiff specifically used the term “PTSD” or revealed
his medical diagnosis. 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.
See Order Regarding Defendant’s Motion to Dismiss (doc. 16) at 9 (internal citations omitted).
Accordingly, the court declined to dismiss Plaintiff’s ADA claim.
Mr. Perez’s second claim did not fair as well. Section 4311 of USERRA prohibits
employment discrimination against service members based on their military service, see 38
U.S.C. § 4311(a), and provides for a hostile work environment cause of action analogous to the
one authorized by Title VII. See, e.g., Otero v. N.M. 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 fall under the broad interpretation of the term
“benefit”). But 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.”). This court
concluded that Mr. Perez had not alleged sufficient facts to establish that Defendant
discriminated against him based on his military service, and failed to provide any factual
allegations to support a hostile work environment claim. Therefore, I concluded that Plaintiff
had not alleged a cognizable claim for relief under USERRA.

3

On January 25, 2016, counsel entered an appearance on behalf of Mr. Perez. That same
day, the court held a status conference with Plaintiff’s counsel in attendance. The court advised
that if Mr. Perez wished to file an amended complaint in light of my recently vacated December
22, 2015 Order, that pleading should be submitted by February 10, 2016. In the absence of an
amended complaint, the court directed the parties to submit a proposed Fed. R. Civ. P. 16
scheduling order by February 15, 2016. Plaintiff did not file an amended complaint by the
prescribed February 10, 2016 deadline.
The court held a Rule 16 scheduling conference on February 18, 2016. At that time, the
court set a fact discovery deadline of June 30, 20162 and a dispositive motion deadline of August
1, 2016. The parties’ proposed scheduling order did not request, and the court did not set, a new
deadline for moving to amend the Complaint. On June 7, 2016, the parties filed a joint motion
for a two-week extension of the discovery deadline. I granted that motion on the same day and
extended the fact discovery deadline to July 14, 2016. On July 26, 2016, Defendant City and
County of Denver filed its pending motion for summary judgment. On August 5, 2016,
Plaintiff’s counsel filed an Unopposed Motion to Withdraw (doc. #41) stating, in part, that
“Plaintiff has requested that he be permitted to represent himself pro se, and has discharged
counsel.” The court granted that motion on August 8, 2016.3 Mr. Perez filed his Opposition to
Defendant’s Motion for Summary Judgment (doc. # 44) on August 16, 2016 and a Motion to
Supplement Plaintiff’s Response to Defendant’s Motion for Summary Judgment (doc. #46) on

2

With the parties’ concurrence and shared desire to control costs, the court stayed all
expert discovery pending a decision on any dispositive motions.
3

On September 21, 2016, a new attorney entered his appearance on behalf of Mr. Perez.
4

August 22, 2016. Mr. Perez also filed a Declaration in Support of Opposition to Defendant’s
Motion for Summary Judgment (doc. #52) on September 9, 2016.4 The City and County of
Denver filed a Reply in Support of its Motion for Summary Judgment (doc. #57) on September
21, 2016.
Also on August 22, 2016, Mr. Perez filed a Request for Leave of Court to Amend
Complaint (doc. #45). Mr. Perez asserted that this belated motion was prompted by “further
investigation” and “additional new information” obtained since December 22, 2016. Plaintiff
indicated that he wished to “add three (3) new claims to the Complaint: 1) violation of Plaintiff’s
Civil Rights for defamation of character; 2) violation of laws governed by the United States
Department of Labor and Plaintiffs (sic) Civil Rights for desperate (sic) treatment due to
assumed mental condition by Defendant for Hostile Work Environment for hazing and
harassment in the work place; [and] 3) violation of the ADA for actions taken, to include a
required Fit-For-Duty evaluation because Plaintiffs (sic) is a combat veteran.” Mr. Perez further
asserted that his proposed amended complaint would “provide additional undisputed facts
referencing” the previously dismissed USERAA claim.
The City and County of Denver filed a Response to Plaintiff’s Motion for Leave to

4

Given that Mr. Perez was without counsel during the briefing period relating to
Defendant’s motion, his submissions must “be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to
all proceedings involving a pro se litigant, including . . . summary judgment proceedings.” Hall,
935 F.2d at 1110 n. 3 (citations omitted). “[S]uch liberal construction is intended merely to
overlook technical formatting errors and other defects in Plaintiff's use of legal terminology and
proper English.” Smith v. Krieger, 643 F. Supp. 2d 1274, 1279 (D. Colo. 2009) (citation
omitted). The court cannot be a pro se litigant’s advocate. Yang v. Archuleta, 525 F.3d 925, 927
n. 1 (10th Cir. 2008).
5

Amend Complaint (doc. #54) on September 15, 2016. Defendant argued that Plaintiff’s motion
was untimely given the February 10, 2016 deadline for amending the Complaint and the recently
filed Motion for Summary Judgment. The City and County also noted that Mr. Perez had been
represented by counsel through the discovery period.
ANALYSIS
A.

Defendant’s Motion for Summary Judgment
Defendant City and County of Denver has moved for summary judgment on the narrow

issue of whether a Fire Department employee on October 1, 2011 improperly disclosed
Plaintiff’s confidential medical information in violation of § 12112(d) of the ADA.5 Defendant
maintains that Captain Wells’ statement to Plaintiff’s co-workers on October 1, 2011, as well as
a letter sent by the Captain on August 28, 2011, did not disclose confidential medical
information. More specifically, the City and County of Denver contends that it cannot be liable
for dissemination of medical information that Plaintiff voluntarily disclosed to co-workers on
August 17, 2011 outside the context of a medical examination or inquiry. Defendant insists that
this undisputed fact “dooms” Plaintiff’s remaining claim for relief.
Mr. Perez argues, to the contrary, that he never explicitly stated that he had posttraumatic stress disorder (PTSD) when he spoke to his co-workers on August 17, 2011, and only
made statements referring to PTSD during a September 7, 2011 interview with Department
officials and subsequent fitness for duty evaluation requested by the Denver Fire Department.

5

In his April 20, 2016 response to Defendant’s Interrogatory No. 4, Plaintiff
acknowledged that the only ADA violation asserted in his Complaint concerned “the alleged
unlawful disclosure of [his] medical condition on October 1, 2011.” See Exhibit 1 (doc. #57-1)
attached to Defendant’s Reply in Support of its Motion for Summary Judgment.
6

As such, Mr. Perez contends that his confidential medical information was disclosed in violation
of § 12112(d).
1.

Standard of Review

“Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant
summary judgment where the [materials in the record, including] . . . depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter
of law.” Montgomery v. Board of Cty. Comm’rs, 637 F. Supp. 2d 934, 939 (D. Colo. 2009)
(internal quotation marks and citations omitted); Fed. R. Civ. P. 56(a).
The burden of persuasion under Rule 56 requires the moving party to “point to those
portions of the record that demonstrate an absence of a genuine issue of material fact, given the
relevant substantive law.” Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024
(10th Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). A fact is
“material” if under the substantive law it could have an effect on the outcome of the lawsuit.
E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). While the moving party bears the
initial burden of showing that there is an absence of any issues of material fact, Hicks v. City of
Watonga, 942 F.2d 737, 743 (10th Cir. 1991), the movant need not negate the non-movant's
claim. See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir. 1994);
Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Once
the moving party points to an absence of evidence to support the non-moving party’s claim, the
non-moving party may not rest upon his pleadings, but must come forward with specific facts

7

showing that there is a genuine issue for trial as to the elements essential to the non-moving
party's case. See Fed. R. Civ. P. 56(e). See also Kannady v. City of Kiowa, 590 F.3d 1161, 1169
(10th Cir. 2010).
To defeat a properly supported motion for summary judgment, there must be evidence
upon which the jury could reasonably find for the plaintiff. See, e.g., Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue
for trial.’”). Conclusory allegations or mere speculation will not create a genuine issue of
material fact necessitating trial. Dobson v. City & Cty. of Denver, 81 F. Supp. 2d 1080, 1083 (D.
Colo. 1999), aff’d, 13 F. App’x 842 (10th Cir. 2001). Cf. Nichols v. Hurley, 921 F.2d 1101,
1113 (10th Cir. 1990), rehearing denied (Jan. 29, 1991) (acknowledging “conclusory allegations
without specific supporting facts have no probative value”). Similarly, evidence that is not
significantly probative and immaterial factual disputes will not defeat a motion for summary
judgment. Ayon v. Gourley, 47 F. Supp. 2d 1246, 1252 (D. Colo. 1998), aff’d, 185 F.3d 873
(10th Cir. 1999). The demonstration of “some metaphysical doubt as to the material facts” is not
sufficient to establish a genuine issue of material fact. Forman v. Richmond Police Dep’t, 104
F.3d 950, 957 (7th Cir. 1997) (quoting Matsushita, 475 U.S. at 586). After construing the
factual record and drawing all reasonable inferences therefrom in the light most favorable to the
non-moving party, Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996), rehearing
denied (Sep. 5, 1996), the court ultimately must determine “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. “The very purpose of a

8

summary judgment action is to determine whether trial is necessary.” White v. York Int’l Corp.,
45 F.3d 357, 360 (10th Cir. 1995).
2.

Undisputed Facts

In his response to Defendant’s written discovery, Mr. Perez indicated that the only ADA
violation he was asserting in his Complaint concerned alleged disclosures of his medical
condition that occurred on October 1, 2011. Specifically, the Complaint alleges that:
On October 1, 2011, Captain Randy Wells had a meeting with firefighters at
Station 9 about Mr. Perez. Mr. Perez was not scheduled to work that day and was
not present for the meeting Captain Wells had with firefighters of Station 9. The
meeting was to discuss Mr. Perez having PTSD and get the opinion of other
firefighters with regards to Mr. Perez having PTSD. Captain Randy Wells also
informed the firefighters that he submitted a letter with the request that Mr. Perez
be evaluated for PTSD. Captain Wells did not inform Mr. Perez that he was
having such a meeting and Mr. Perez was only notified at home via a phone call
by another firefighter that this meeting was taking place.
See Complaint, at ¶ 27.
After reviewing the parties’ briefs and attached exhibits, the court concludes that the
following material facts are not in dispute for purposes of the pending motion for summary
judgment.6
Plaintiff currently is employed by the City in the Denver Fire Department (“DFD”) as a
Firefighter. On August 17, 2011, Plaintiff was assigned to Engine Company 9, a unit in the
chain of command of Captain Randy Wells. On that day, Plaintiff and members of Engine
Company 9's B shift were dispatched to a scene where a truck fatally struck a young child. This
was emotionally disturbing for Plaintiff because the child was close in age to Plaintiff’s son.

6

The court’s recitation of undisputed facts is drawn from Defendant’s Motion for
Summary Judgment (doc. #37), at 2-5, Plaintiff’s Opposition (doc. #44), at 3-5, and Plaintiff’s
Supplement (doc. #50), at 1-2, as well as the exhibits attached thereto.
9

Captain Wells asked Plaintiff if he was okay after that call, and Plaintiff said he was.
Later that same day, Plaintiff attended Emergency Medical Services (“EMS”) training
which included instruction on the application of tourniquets in the field. The training materials
included pictures and statistics from military combat operations in Iraq and Afghanistan.
Plaintiff became visibly upset to the point that he stood up in the middle of training and left the
room. Technician Mike Morris and Captain Wells followed Plaintiff outside and asked if he was
okay. Plaintiff said he needed some time to let some things out. Mr. Perez has testified that on
August 17, 2011, he was upset, tearful, and crying, and was visibly suffering from PTSD. See
Exhibit 1 (doc. #37-1) (Deposition of David Perez, at pp. 91:7-14 and 95:12-25), attached to
Defendant’s Motion.
Based on that day’s events, Captain Wells asked Plaintiff if he could perform his duties.
Although Mr. Perez believed that he could, he instead elected to go home early.7 Id. at pp. 90:911. Captain Wells recognized that Mr. Perez wanted his emotional reaction to the events of
August 17, 2011 to remain confidential and “that’s the route we going to go as far as [Plaintiff]
crying.” See Exhibit 1 (Deposition of Randall Wells, at 24:6-14), attached to Plaintiff’s
Supplement.
Before leaving the firehouse, Mr. Perez decided to speak with the members of B shift to
“let them know why [he] was going home because . . . . it was concerning to them about my
mental health.” See Exhibit 1 (doc. #37-1) (Deposition of David Perez, pp. 90:9-15 and 93:211), attached to Defendant’s Motion for Summary Judgment. Plaintiff concedes this decision to

7

Mr. Perez maintains that he “decided to go [home] because he realized there was
concern for [him] and he did not want this to be a factor in the work performance of his crew or
himself if [he] stayed on shift.” See Plaintiff’s Opposition, at 3.
10

speak with his co-workers was purely voluntary on his part. Id. at p. 91:2-6. Although Plaintiff
does not recall specifically what he said to his co-workers, he did “[tell] them about how I was in
combat, and I lost . . . we lost five Marines in my outfit.” Mr. Perez amplified on his remarks
during his deposition.
Q.
A.
Q.
A.
Q.
A.

And you gave their names, didn’t you?
Yes, I did.
And you talked about the events of that day, correct?
Yes. And about the kid, yes.
And about the kid and the tourniquet training . . .
Yes.

Id. at p. 93:12-25.
Q. Did anyone say anything to you after you finished speaking?
A. They made comments of – like, more supportive comments. Exactly what
they said, I don’t recall.
* * *
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Were people generally supportive?
Yes.
Did you tell people that you had sought or were receiving treatment?
Yes.
Did you say where you sought or were receiving treatment?
The VA.
And did you say you were in treatment or that you had been treated or –
I sought treatment.

* * *
Q. Okay. When you talked to the group and you disclosed that you – based on
the events of that day, between the traumatic event of the child and the tourniquet
and bringing up memories of loss in the military, did you think people might
think, you know, he’s got PTSD?
A. I don’t know what people would think.
Q. Were you concerned about people thinking that?
A. Yes.
Q. But you talked to them anyway?
A. Yes.
Q. Did anyone ask you afterwards about PTSD?
A. Not that I recall – not that I can recall.
11

Id. at pp. 98:1-5 and 20-25, 99:1-25 and 100:1-4.
On August 28, 2011, Captain Randy Wells wrote a letter to Assistant Chief Daniel Garcia
requesting that Mr. Perez be evaluated for PTSD. As Captain Wells explained during his
deposition, he submitted that request “based on David’s statements to everyone and me,” which
concerned Plaintiff’s “time in Iraq, how that – the EMS class affected him, and that – yeah,
overall everything that he said in that meeting.” See Exhibit 1 (Deposition of Randall Wells, at
pp. 38:10-20 and 40:11-19) attached to Plaintiff’s Supplement. According to Captain Wells, his
August 28, 2011 request for an evaluation referenced PTSD
[b]ecause of what he said about his time in the military, and he was seeing the VA
– he was seeing somebody at the VA; that tells me that he has had some posttraumatic stress, not necessarily that he has a disorder but that he has had some
post-traumatic stress.
Id. at p. 44:18-25.
On or about September 7, 2011, Plaintiff met with Division Chief of Administration
Tony Berumen and Assistant Chief Russ Bray to discuss the incident that occurred on August
17, 2011. Mr. Perez acknowledged during his deposition that he told Division Chief Berumen
and Assistant Chief Bray that he had PTSD. Plaintiff explained that he disclosed his condition
Because of the situation. A letter was written on me to be evaluated for PTSD.
They wanted me to get a fit-for-duty evaluation. I told them I did not need it
because I already sought treatment at the VA, and I was continuing treatment at
the VA. And so I didn’t want to go through the hoops again to do all that. So in
disclosing that, I initially agreed to see Karen Jackson, which later turned into me
going to get a full fit-for-duty evaluation.
See Exhibit 1 (doc. #37-1) (Deposition of David Perez, at p. 131:5-13), attached to Defendant’s
Motion. Mr. Perez concedes that he has no knowledge that Division Chief Berumen or Assistant
Chief Bray shared with anyone else Plaintiff’s statements concerning his PTSD treatment. Id. at

12

p. 132:7-10.
On September 28-29, 2011, Dr. Debra Tasci, Psy.D, a clinical psychologist with
Nicoletti-Flater Associates, met with Plaintiff to evaluate his fitness-for-duty as a firefighter.
See Exhibit 2 (doc. #39) (Declaration of Debra Tasci, at ¶¶ 2-3), attached to Defendant’s Motion.
On October 10, 2011, Dr. Tasci sent her written report to Division Chief Tony Berumen via U.S.
mail. Id. at ¶¶ 4 and 8. Dr. Tasci did not communicate or otherwise release any information
regarding the fitness for duty examination to anyone outside Nicoletti-Flater Associates before
October 10, 2011. Id. at ¶ 9. Dr. Tasci found Plaintiff has some symptoms that are consistent
with PTSD, but she did not diagnose Plaintiff as having PTSD.8 Id. at ¶¶ 5-6. By her own
admission, Dr. Tasci evaluated Plaintiff solely to determine if he was fit for duty as a firefighter.
Id. at ¶ 7.
Defendant admits, for purposes of the pending motion for summary judgment, that during
a meeting with Plaintiff’s co-workers on October 1, 2011, Captain Wells stated that Mr. Perez
has PTSD and that he (Captain Wells) requested, by letter, that Plaintiff be evaluated for PTSD.
At his deposition, however, Captain Wells testified that he never received any information or
documentation from a medical provider or mental health therapist indicating that Mr. Perez had
PTSD, and that he never asked Plaintiff if he had PTSD.
Q. Did you ever get information from anyone in the Denver Fire Department or
elsewhere that David Perez had a diagnosis of PTSD?
A. No.
* * *

8

Indeed, Dr. Tasci’s report specifically notes that a “Fitness for Duty Evaluation . . . is
not meant as a means for providing a mental health diagnosis.” See Exhibit A attached to Dr.
Tasci’s Declaration.
13

Q. Do you know if Perez went for a fitness-for-duty examination?
A. I do.
Q. And was the fitness-for-duty report shared with you?
A. No.
Q. Was information from the fitness-for-duty report shared with you?
A. No.
Q. Do you know whether or not the fitness-for-duty report contained a diagnosis
of PTSD?
A. No.
See Exhibit 3 (doc. #37-3) (Deposition of Randall Wells, at pp. 76:25 and 77:1-21), attached to
Defendant’s Motion. More to the point, Captain Wells testified, without contradiction, that he
never asked Plaintiff if he had PTSD and never received any information or documentation from
a medical provider or mental health therapist indicating that Mr. Perez had PTSD.
Notwithstanding the foregoing uncontested facts, Mr. Perez claims there are “numerous
material facts” that remain in dispute, such as:
The intent9 and disclosure of the letter Randy Wells wrote calling for the
evaluation of Mr. Perez for PTSD; the statement Randy Wells made saying Mr.
Perez had PTSD; and the position that the Defendant has taken stating Mr. Perez
voluntarily told his peers he had PTSD even though no such statement had ever
been made prior to October 1, 2011 in which these allegations are made merely
through assumption and not facts[.]
See Plaintiff’s Opposition, at 2.
3

Application of § 12112(d)

9

To prove a claim under § 12112(d) based upon the improper disclosure of confidential
medical information, a plaintiff must show: (1) that plaintiff’s medical information was obtained
through employment-related medical examinations and inquiries, (2) that the information
obtained through such means was disclosed by the employer rather than treated as confidential,
and (3) that the plaintiff suffered a tangible injury as a result of the disclosure of the confidential
medical information. See, e.g., Shoun v. Best Formed Plastics, Inc.. 28 F. Supp. 3d 786, 788-89
(N.D. Ind. 2014); Franklin v. City of Slidell, 936 F. Supp. 2d 691, 711 (E.D. La. 2013). Plaintiff
has not cited, and this court’s own research has not found, any judicial precedent holding that
“intent” is a required element for a claim under § 12112(d). Therefore, any dispute as to Captain
Wells’ intent is not material for purposes of the pending motion.
14

Section 12112(d)(4)(A) of the ADA provides that a covered entity may not require a
medical examination or make inquiries of an employee “as to whether such employee is an
individual with a disability or as to the nature or severity of the disability, unless such
examination or inquiry is shown to be job-related and consistent with business necessity.” A
covered entity “may make inquiries as to the ability of an employee to perform job-related
functions.” 42 U.S.C. § 12112(d)(4)(B). Cf. Wisbey v. City of Lincoln, 612 F.3d 667, 673 (8th
Cir. 2010) (“employers are permitted ‘to use reasonable means to ascertain the cause of troubling
behavior without exposing themselves to ADA claims,’ and fitness-for-duty exams are
considered a reasonable means of making this determination”) (internal citations omitted),
abrogated on other grounds, Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir.
2011). However, any information obtained through the foregoing medical examinations or
inquires “may be used only in accordance with” the requirements imposed by the statute. See 42
U.S.C. § 12112(d)(3)(c) and (4)(c). Cf. Kingston v. Ford Meter Box Co., Inc., No. 3:07-CV-270
RM, 2009 WL 981333, at *9 (N.D. Ind. Apr. 10, 2009) (“Employers may ask employees about
their medical information for certain job related purposes, but once that information is obtained,
they must keep it confidential[.]”). Stated differently, a covered entity must treat “as a
confidential medical record” any information obtained through a voluntary medical examination
or inquiry under § 12112(d)(4).10 See E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1046 (10th
Cir. 2011).11 “Disclosure of confidential information obtained through an authorized medical

10

The safeguards afforded by § 12112(d) are not limited to employees with disabilities.
See Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1230 (10th Cir. 1997).
11

Confidential medical information may only be disclosed to a limited group of
individuals, such as the employee’s supervisors or managers. See 29 C.F.R. § 1630.14(c)
15

examination would constitute a violation of [§ 12112(d)] and could give rise to a claim under the
ADA.” Id. at 1046-47.
To assert a violation of § 12112(d), a plaintiff must prove, as a threshold matter, that the
improperly disclosed information was confidential under the pertinent provisions of the ADA,
i.e., derived from an employment-related medical examination or inquiry. Cf. McCarthy v.
Brennan, No. 15-cv-03308-JSC, 2017 WL 386346, at *12 (N.D. Cal. Jan. 27, 2017). It is
equally well-established that an employee’s voluntary disclosure of medical information outside
the context of an authorized employment-related medical examination or inquiry is not protected
under § 12112(d). “[I]f an employer discloses medical information that was voluntarily offered
by an employee – outside the context of an authorized employment-related medical examination
or inquiry – then the employer is not subject to liability under [§ 12112(d)].” E.E.O.C., 644 F.3d
at 1047.
If I construe the evidence proffered by the parties in a light most favorable to Mr. Perez,
it appears that on August 17, 2011, Captain Wells and Mr. Perez discussed how Plaintiff might
deal with the very emotional circumstances of that day: “what would work best for Dave, maybe
going to the clinic if he physically wasn’t feeling well, staying there at the station, and we talked
about – and I don’t know that the context was about him going home for the day.” See Exhibit 1
(Deposition of Randall Wells, at p. 24:1-5), attached to Plaintiff’s Supplement. Mr. Perez
concedes that while he “wanted to stay at the firehouse, . . . Lenny Szumski came into my room

(although information regarding the medical condition or history of an employee must be
collected and maintained on separate forms and in separate medical files, “supervisors and
managers may be informed regarding necessary restrictions on the work or duties of the
employee and necessary accommodations”).
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and told me that I should go home and be with my family.” See Exhibit 1 (doc. #37-1)
(Deposition of David Perez, at p. 93:4-6), attached to Defendant’s Motion. Mr. Perez
subsequently spoke with his co-workers, not at Captain Wells’ direction, but rather because
Plaintiff “wanted to let them know why I was going home because . . . . it was concerning to
them about my mental status.” Id. at p. 93:8-11.
In Equal Employment Opportunity Commission v. Thrivent Financial for Lutherans, 795
F. Supp. 2d 840, 843 (E.D. Wis. 2011), aff’d, 700 F.3d 1044 (7th Cir. 2012), the court noted that
“courts have consistently held that the confidentiality requirements of [§ 12112(d)(4)] do not
protect medical information that is voluntarily disclosed by the employee and, thus, is not
acquired as a result of a medical inquiry by the employer.” Cf. Cash v. Smith, 231 F.3d 1301,
1307 (11th Cir. 2000) (concluding that an employee’s disclosure made “in confidence” was still
voluntary for purposes of § 12112(d) when it was not done pursuant to a FMLA request nor
made in response to specific questioning); 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); Kingston, 2009 WL 981333, at *11 (concluding
employee’s disclosure was voluntary when he disclosed his medical condition prior to a
discussion with employer about his need for reasonable accommodations). Plaintiff concedes
that on August 17, 2011, he was visibly suffering from PTSD, and that he voluntarily told his coworkers about his combat experience and seeking treatment from the VA.
Captain Wells’ expressions of concern on August 17, 2011 did not rise to the level of a
medical inquiry subject to the confidentiality requirements of § 12112(d)(4). “A general inquiry

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directed to an employee by an employer who has no preexisting knowledge that the employee
was ill or incapacitated which nonetheless results in the employee sharing medical information
will not subject a covered entity to liability under 42 U.S.C. § 12112(d)(4).” Sheriff v. State
Farm Ins. Co., No. 3:12-cv-243, 2013 WL 4084081, at *8 (W.D. Pa. Aug. 13 2013). “The
statute, by its terms, does not extend protection to all information regarding the medical
condition or history of any employee except that which is voluntarily shared by an employee.
Rather, it covers information that was obtained pursuant to a medical examination or inquiry.”
Id. at *9.
As the court noted in Sherrer v. Hamilton County Board of Health, 747 F. Supp. 2d 924,
932 (S.D. Ohio 2010), a supervisor’s question “is everything okay?” does not presumptively
equate to an inquiry “into the ability of [the employee] to perform job-related functions” as
specified in § 12112(d)(4)(B). Based upon its review of pertinent case law, the district court
concluded that
claims of illegal disclosure of confidential medical information [should] proceed
to a jury when there are facts in the record demonstrating that a supervisor probed
an employee for medical information or conditioned the employee’s job
accommodation or medical leave on the employee’s provision of medical
information to the supervisor.
Id. at 933.12 The court granted defendant’s motion for summary judgment after concluding that
no reasonable fact finder could conclude that Ms. Sherrer disclosed her medical information in

12

The Sherrer court based its analysis on the decisions Doe v. United States Postal
Service, 317 F.3d 339 (D.C. Cir. 2003), Fleming v. State University of New York, 502 F. Supp.
2d 324 (E.D.N.Y. 2007), EEOC v. Ford Motor Credit Company, 531 F. Supp. 2d 930 (M.D.
Tenn. 2008), Kingston v. Ford Meter Box Company, Inc., No. 3:07-CV-270 RM, 209 WL
981333(N.D. Ind. Apr. 10, 2009), and Ross v. Advance America, 605 F. Supp. 2d 1025 (E.D.
Ark. 2009).
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response to a § 12112(d) inquiry. The same conclusion is warranted in this case.
Captain Wells admits that on August 28, 2011, he sent a letter to Assistant Chief Daniel
Garcia requesting that Plaintiff be evaluated for PTSD. That request, according to Captain
Wells, was predicated on the voluntary statements Mr. Perez made on August 17. Mr. Perez
does not recall specifically mentioning PTSD to anyone, including Captain Wells, on August 17,
2011. However, Plaintiff acknowledges that his comments that day might have caused listeners
to think about PTSD. Construing the facts in a light most favorable to Plaintiff, it would appear
that the Captain Wells’ references to PTSD in his letter of August 28,2011 and his comments on
October 1, 2011, reflected inferences drawn by Captain Wells rather than medical information
elicited from by Mr. Perez. Cf. E.E.O.C. v. Thrivent Fin’l for Lutherans, 700 F.3d 1044, 1050
(7th Cir. 2012) (holding the word “inquiries” in § 12112(d) “does not refer to all generalized
inquiries, but instead refers only to medical inquiries”) (emphasis in original). Captain Wells
insists that he never saw the fitness for duty evaluation sent to Division Chief Berumen by mail
on October 10, 2011 and was not aware until July 6, 2017 that Plaintiff had been diagnosed with
PTSD by anyone. Mr. Perez has not come forward with specific evidence that would rebut
Captain Wells’ deposition testimony.
In sum, I conclude that Captain Wells’ letter of August 28, 2011 and comments on
October 1, 2011 did not violate § 12112(d) of the ADA. Accordingly, the court will grant
Defendant’s motion for summary judgment.

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II.

Plaintiff’s Request for Leave to Amend Complaint
Plaintiff Perez moved for leave to amend his Complaint well after the February 10, 2017

deadline set by the court on January 25, 2016 and reiterated in the parties’ Rule 16 scheduling
order dated February 18. 2016. Therefore, the court must start its analysis with Rule 16(b)(4).
As the court noted in Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir.
2008), Rule 16(b) specifically requires the trial court to “‘issue a scheduling order’ which ‘must
limit the time to join other parties, amend the pleadings, complete discovery, and file motions.’”

When a party seeks to amend a pleading after the scheduling deadline for doing
so, the application of Rule 16(b)’s good-cause standard is not optional. To permit
district courts to consider motions to amend pleadings under Rule 15(a) without
regard to Rule 16(b) “would render scheduling orders meaningless and effectively
. . . read Rule 16(b) and its good cause requirement out of the Federal Rules of
Civil Procedure.”
Id. at 716 (quoting Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998)).
Rule 16(b)(4) provides that a scheduling order “may be modified only for good cause and
with the judge’s consent.” See Fed. R. Civ. P. 16(b)(4). This “good cause” requirement reflects
the important role a scheduling order plays in the court’s management of its docket. Cf.
Washington v. Arapahoe Cty. Dep’t of Soc. Servs., 197 F.R.D. 439, 441 (D. Colo. 2000) (noting
that a “scheduling order is an important tool necessary for the orderly preparation of a case for
trial”). See also Rent-a-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 101
(S.D.N.Y. 2003) ("scheduling orders are designed to offer a degree of certainty in pretrial
proceedings, ensuring that at some point both the parties and the pleadings will be fixed and the
case will proceed"); Deghand v. Wal-Mart Stores, Inc., 904 F. Supp. 1218, 1221 (D. Kan. 1995)
(“a scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly
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disregarded by counsel without peril”).
The “good cause” standard requires the moving party to show that despite its diligent
efforts, it could not have reasonably met the scheduled deadline. See Pumpco, Inc. v. Schenker
Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001).
Rule 16(b)’s “good cause” standard is much different than the more lenient
standard contained in Rule 15(a). Rule 16(b) does not focus on the bad faith of
the movant, or the prejudice to the opposing party. Rather, it focuses on the
diligence of the party seeking leave to modify the scheduling order to permit the
proposed amendment. Properly construed, “good cause” means that scheduling
deadlines cannot be met despite a party’s diligent efforts. In other words, this
court may “modify the schedule on a showing of good cause if [the deadline]
cannot be met despite the diligence of the party seeking the extension.”
Carelessness is not compatible with a finding of diligence and offers no reason for
a grant of relief.
Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) (quoting Dilmar
Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F. Supp. 959 (D.S.C. 1997), aff’d, 129 F.3d 116
(4th Cir. 1997)).
Plaintiff’s proposed amended complaint seeks to include additional facts that were within
his personal knowledge well before the filing of the original Complaint on March 4, 2015, and
certainly accessible to Plaintiff’s first counsel prior to February 10, 2017. Mr. Perez also wishes
to add three new claims for relief, including a common law claim for defamation, a claim for
disparate treatment, and a second ADA claim asserting that Plaintiff was required to take a
fitness for duty evaluation because of his status as a combat veteran. While the court expresses
no views on the potential merits of these proposed claims, it cannot be disputed those claims
could have been raised by Plaintiff’s counsel within the court-imposed deadline for amending
pleadings. Cf. Roberge v. Lupo LLC, 254 F.R.D. 21, 23 (D. Me. 2008) (in denying plaintiff’s
motion for leave to amend filed after the expiration of the deadline for amendment of pleadings,
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held that plaintiff “had sufficient evidence to support this claim at the time the original complaint
was filed”). See also Leary v. Daeschner, 349 F.3d 888, 908 (6th Cir. 2003) (holding that the
Rule 16(b)(4) “good cause” standard was not met where plaintiffs could have pled their new
claim for money damages within the parameters of the court’s scheduling order because
plaintiffs were well aware of the underlying facts and the various types of relief available). This
is not a case where a party is seeking to amend based on an unanticipated or untimely change in
the law. Compare Pumpco, 204 F.R.D. at 668 (finding that new law establishing a basis for an
additional claim for relief after the deadline to amend had passed constituted good cause to
justify an extension of that deadline).
“A litigant’s failure to assert a claim as soon as he could have is properly a factor to be
considered in deciding whether to grant leave to amend.” In re Enron Corp. Sec., Derivative &
ERISA Litig., 610 F. Supp. 2d 600, 653 (S.D. Tex. 2009) (rejected plaintiff’s attempt to justify a
belated motion to amend by shifting responsibility on to the court; “where plaintiffs ‘deliberately
chose to delay amending their complaint, . . . a busy court need not allow itself to be imposed
upon by the presentation of theories seriatim’”). See also Transam. Life Ins. Co. v. Lincoln Nat’l
Life Ins. Co., 590 F. Supp. 2d 1093, 1100-1105 (N.D. Iowa 2008) (concluding that plaintiff’s
belated motion for leave to amend was not prompted by a change in the law, but rather reflected
“second guessing” of earlier tactical decisions to forego those claims; held that plaintiff knew all
the circumstances giving rise to the belatedly proposed claim well before the deadline for leave
to amend). The Federal Rules of Civil Procedure will not necessarily protect a party from the
unforeseen consequences of their own litigation strategy. See Martinez v. Target Corp, 384 F.
App’x 840, 846-47 (10th Cir. 2010) (finding no abuse of discretion in the trial court’s denial of

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plaintiff’s untimely motion for leave to amend; found inadequate plaintiff’s explanation that she
did not move to amend because she thought her FMLA claim was premature).
Plaintiff argues that his motion to amend should be granted because “the requested
amendments will aid in the administration of justice by better framing the legal and factual
issues of this case before the court.” This argument rings hollow given Plaintiff’s failure to
move in a timely manner. If Mr. Perez was intent on “better framing” the legal and factual
issues in this case, his motion should have been filed during the discovery period, not 27 days
after Defendant City and County of Denver moved for summary judgment.

Cf. Pallottino

v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994) (noting that “[m]uch of the value of
summary judgment procedure in the cases for which it is appropriate . . . would be dissipated if a
party were free to rely on one theory in an attempt to defeat a motion for summary judgment and
then, should that theory prove unsound, come back along thereafter and fight on the basis of
some other theory;” “[t]he decision to grant leave to amend a complaint, after the permissive
period, is within the court’s discretion and will not be disturbed absent an abuse of that
discretion”).
This court has an independent responsibility for case management. Cf. Beller ex rel.
Beller v. United States, 221 F.R.D. 689, 693 (D.N.M. 2003) (the case management elements of
Rule 16 are based on the “recognition that cases can move efficiently through the federal system
only when courts take the initiative to impose and enforce deadlines”). As the Tenth Circuit has
acknowledged, courts have a “high duty to insure the expeditious and sound management of the
preparation of cases for trial.”
While on the whole Rule 16 is concerned with the mechanics of pretrial
scheduling and planning, its spirit, intent and purpose is clearly designed to be
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broadly remedial, allowing courts to actively manage the preparation of cases for
trial . . .
Olcott v. Delaware Flood Co., 76 F.3d 1538, 1555 (10th Cir. 1996) (quoting Matter of Sanction
of Baker, 744 F.2d 1438, 1440 (10th Cir. 1984) (en banc)). Both the court and Defendant City
and County of Denver are entitled to expect that by a date certain, Plaintiff’s claims will be fixed
and the case will proceed on that basis. Based upon Plaintiff’s lack of diligence in pursuing his
proposed additional claims, I conclude that Mr. Perez has not sustained his burden under Rule
16(b)(4). Accordingly, the court will deny Plaintiff’s Request for Leave of Court to Amend
Complaint.
CONCLUSION
For the foregoing reasons, Defendant City and County of Denver’s Motion for Summary
Judgment (doc. #37) is GRANTED and Plaintiff David Perez’s Request for Leave of Court to
Amend Complaint (doc. #45) is DENIED.
DATED this 20th day of March, 2017.
BY THE COURT:
s/ Craig B. Shaffer
United States Magistrate Judge

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