In the united states district court for the eastern district of michigan united states of america




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1

IN THE UNITED STATES DISTRICT COURT



FOR THE EASTERN DISTRICT OF MICHIGAN

UNITED STATES OF AMERICA, )

)

Plaintiff, )



)

v. ) CASE NO. 94-CV-74997-DT

)

CITY OF PONTIAC, a ) HON. DENISE PAGE HOOD



Municipality of the )

State of Michigan, )

)

Defendant. )



___________________________________ )
ALLISON NICHOL THOMAS L. FLEURY(P24064)

EDWARD MILLER KELLER, THOMA, SCHWARZE,

BEBE NOVICH SCHWARZE, DuBAY & KATZ,P.C.

Attorneys for Plaintiff Attorneys for Defendant

Disability Rights Section 440 East Congress St.,5thFloor

Civil Rights Division Detroit, Michigan 48226

U. S. Department of Justice (313) 965-7610

P. O. Box 66738

Washington, D.C. 20035-6738

(202) 514-3422




PLAINTIFF UNITED STATES' BRIEF IN SUPPORT

OF ITS MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS




Page
Concise Statement of Issues iii
Table Of Authorities iv
I. Statement of Uncontested Facts 1
A. Henderson's Education, Training and Experience 1
B. Henderson's Application With and Rejection by Pontiac 2
C. Pontiac as Employer of Fire Fighters 6
D. The City's Rationale for the Hiring Decision 8
II. Standard for Summary Judgment 10
III. Prima Facie Case 11
A. Dennis Henderson Is an Individual with a Disability under
the ADA Because the Defendant Has Regarded Henderson as
Having a Disability 12
1. Henderson Has a "Disability" under the ADA Because
The Defendant Has Regarded Him as Being Substantially
Limited in the Major Life Activity of Seeing 15
2. Henderson Has a "Disability" under the ADA Because
the Defendant Has Regarded Him as Being Substantially
Limited in the Major Life Activity of Working 17
a. The City Regarded Henderson as Being
Disqualified from the Class of Fire Fighting Jobs 17
b. The City Also Regarded Henderson as
Disqualified from a Broad Range of Jobs in
Various Classes 19
B. Dennis Henderson Is Qualified 21
C. The Defendant Discriminated Against Dennis Henderson in
Employment Because of His Perceived Disability.. 22

IV. Plaintiff Should Be Awarded Summary Judgment on Affirmative Defense


Number Eight: The "Parties" Defense 23
A. The City and the Commission Are Not Separate Legal Entities 23
B. Even if the City and the Commission Are Separate Legal
Entities, the City as the Employer Is Liable for the
Discriminatory Employment Decision 24
1. The City Made the Decision to Reject Dennis
Henderson for a Fire Fighter Position 24
2. The City Is the Employer of Fire Fighters 26
C. Even if the City and the Commission Are Separate Legal
Entities, the City Is Liable for Perpetuating any Discrimination
Committed by the Commission 28
V. The "Direct Threat" Defense Does Not Shield Defendant's
Discriminatory Employment Decision 29
A. The Defendant Did Not Conduct an Individualized
Assessment of Henderson 30
B. The Defendant Has Admitted that It Did Not Consider Any
Reasonable Accommodation to Reduce Any "Direct Threat" 33
C. The Defendant Has Withdrawn any Arguments That Its
Qualification Standards Are "Job-related and Consistent with
Business Necessity" 34
D. Dennis Henderson Cannot Pose a Direct Threat Within the
Meaning of the ADA Because He Has no Actual Disability 35
VI. Plaintiff Should Be Awarded Summary Judgment on all Other
Affirmative Defenses 37
A. Affirmative Defense No. 1 37
B. Affirmative Defense Nos. 2 and 5 37
C. Affirmative Defense Nos. 8 and 10 38
VII. Conclusion 40

CONCISE STATEMENT OF ISSUES


This is an employment discrimination action in which the Plaintiff United States alleges that the Defendant City of Pontiac has discriminated against Dennis Henderson in violation of title I of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12111 et seq. ("ADA"). Defendant discriminated against Henderson by failing or refusing to hire him into the position of fire fighter
in the Pontiac Fire Department because the City regarded Henderson as having a disability.

When it made its decision to deny employment to Henderson, the Defendant ignored Henderson's 14 years of prior fire fighting experience; his outstanding scores on Pontiac's own preemployment examinations; his state certifications as an Emergency Medical Technician, Fire Fighter and Fire Officer; and the promotions, commendations and specialized fire fighting training he has received. Instead, without conducting any individualized assessment of Henderson's abilities, the Defendant refused to hire Henderson because he had a physical condition that was disqualifying under National Fire Protection Association ("NFPA") guidelines.



Undisputed facts from pleadings, admissions, deposition testimony and the Defendant's own Rule 30(b)(6) testimony establish a prima facie case of employment discrimination under the ADA, and show that Defendant can offer no nondiscriminatory reason for its hiring decision. Further, all of the Affirmative Defenses relied upon by the Defendant are either inapplicable or are disproved by uncontested facts. Therefore, Plaintiff urges that summary judgment be entered in favor of the Plaintiff.
TABLE OF AUTHORITIES

Page
I. Cases
Alderson v. Postmaster General, 598 F. Supp. 49 (W.D. Okla. 1984) 36
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 10, 11
Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995) 21
Bobbitt v. Victorian House, 532 F. Supp. 734 (N.D. Ill. 1982) 29 n.21
Bombrys v. City of Toledo, 849 F. Supp. 1210 (N.D. Ohio 1993) 31
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 11
Chevron U.S.A. Inc. v. National Resources Defense Council, Inc.,
467 U.S. 837, 843 (1984) 13 n.4
Coffman v. State Bd. of Examiners in Optometry, 331 Mich. 582,
50 N.W.2d 322 (1951) 24 n.16
Cook v. State of Rhode Island, 10 F.3d 17 (1st Cir. 1993) 19
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995) 15 n.7
E. E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Haw. 1980) 17, 18
Fitzpatrick v. Blitzer, 427 U.S. 445 (1975) 40
Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993) 17 n.8
Flasza v. TNT Holland Motor Express, Inc., 155 F.R.D. 612 (N.D. Ill. 1994) 37 n.28
Gupton v. Virginia, 14 F.3d 203 (4th Cir.), cert. denied, 115 S. Ct. 59 (1994) 17 n.8
International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) 40
McClain v. Wagner Elec. Corp., 550 F.2d 1115 (8th Cir. 1977) ....................................... 40
Sarsycki v. United Parcel Service, 862 F. Supp. 336 (W.D. Okla. 1994) .......................... 31

Page
School Board of Nassau Co. v. Arline, 480 U.S. 273 (1987) 13, 31-33
Slavin v. City of Detroit, 262 Mich. 173, 247 N.W. 145 (1933) 27
Spath v. Berry Plastics Corp., 900 F. Supp. 893 (N. D. Ohio 1995) 11
Stillwell v. Kansas City, 872 F. Supp. 682 (W.D. Mo. 1995) 31
Taylor v. United States Postal Service, 946 F.2d 1214 (6th Cir. 1991) 13, 33
Thorne v. Nicholson, 32 Mich. App. 223, 188 N.W.2d 159 (1971) 27
United States v. Berrien County, 49 FEP Cases 78 (W.D. Mich. 1988) 39
United States v. Board of Trustees of S. Ill. Univ., No. 97-733 WLB,
1995 WL 311336 (S.D. Ill. 1995) 39
United States v. City of Warren, 759 F. Supp. 355 (E.D. Mich. 1991) 40
United States v. Electrical Workers, Local 38, 428 F.2d 144 (6th Cir.),
cert. denied, 400 U.S. 943 (1970) 40
United States v. Hancock County Bd. of Educ., 65 Empl. Prac. Dec. ¶ 43,318
(N.D. W. Va. 1993) 39
United States v. Roadway Express Co., Inc., 457 F.2d 854 (6th Cir. 1972) 40
Vande Zande v. Wisconsin Dept. of Admin., 44 F.3d 538 (7th Cir. 1995) 13
White v. York Intern. Corp., 45 F.3d 357 (10th Cir. 1995) 11

II. Constitutions, Statutes, Regulations and Legislative Materials
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. passim
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 39-40
S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 33
H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 2 (1990) 13

Page
H.R. Rep. No. 485, 101st Cong., 2d Sess., Pt. 3 (1990 13, 19 n.10
29 C.F.R. Pt. 1630 passim
29 C.F.R. Pt. 1630, App. 15 n.7, 19 n.10, 33
Mich. Const. art. XI, § 5 26-27
Mich. Comp. Laws Ann. § 38.501 et seq. (West 1995) 8, 23-24, 26 n.20
Mich. Comp. Laws Ann. § 117.1 et seq. (West 1995) 24 n.16
Pontiac Code § 12-18 8

III. Court Rules
Fed. R. Civ. P. 56(c) 10
Fed. R. Civ. P. 8(c) 29 n.21, 37 n.28
Fed. R. Civ. P. 30(b)(6) 2, 6, 10, 37, 39 n.31

IV. Other Material
Op. Mich. Att'y Gen. No. 4983, 520 (June 25, 1976) 24 n.17
5 C. Wright & A. Miller, Federal Practice & Procedure § 1271 (1969) 29 n.21
I. STATEMENT OF UNCONTESTED FACTS

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