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




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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 Street, 5th Floor

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' RESPONSE BRIEF IN OPPOSITION
TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

TABLE OF CONTENTS
Page
Concise Statement of Issues ii
Table of Authorities iii
I. Argument 1
A. Dennis Henderson Is an Individual with a Disability under
the ADA Because the Defendant Has Regarded Henderson as
Having a Disability 1
B. Defendant Has Failed to Rebut Undisputed Evidence that
Henderson Is Qualified Within the Meaning of the ADA 3
C Even Assuming Defendant Is Permitted to Assert a Direct
Threat Defense, Defendant Has not Proven Henderson Would
Pose a Direct Threat Under the ADA 5
D. The City of Pontiac Is Liable for the Discriminatory Hiring Decision 15
1. The City of Pontiac Made the Decision to Deny
Employment to Henderson 15
2. Act 78 Does Not Support Defendant's Contention
that the Commission Is a Separate Legal Entity 16
3. Even if the Commission Is a Separate Legal Entity,
the City Is Liable for the Discrimination 18
II. Conclusion 20
CONCISE STATEMENT OF ISSUES

In this action, Plaintiff United States alleges that Defendant City of Pontiac discriminated against Dennis Henderson on the basis of his disability, in violation of title I of the Americans with Disabilities Act ("ADA"), by failing or refusing to hire him as a entry-level fire fighter in Defendant's fire department because he has monocular vision. Plaintiff has moved for summary judgment, establishing a prima facie case of employment discrimination under the ADA by demonstrating that: Defendant regarded Henderson as having a disability; Henderson was qualified for the entry-level fire fighter position; Henderson was denied the fire fighter position because of his disability; and Defendant's affirmative defenses must fail as a matter of law.

Defendant cross-moved for summary judgment, alleging that: Henderson does not have a disability under title I; Henderson was not qualified for the fire fighter position; and Defendant is not a proper party to this action. Plaintiff demonstrates in this brief that Henderson has a disability because Defendant regarded him as being substantially limited in the major life activities of seeing and working; Henderson's extensive qualifications, actual fire fighting work experience, and performance on Defendant's entrance examinations demonstrates that he was qualified for the position, and Henderson can not pose a direct threat to the health or safety of himself or others; and the City is the proper Defendant because it is not a separate legal entity from the Fire Civil Service Commission and because the City is the employer of fire fighters and made the discriminatory decision to reject Henderson's application.

A complete Statement of Uncontested Facts and Argument is contained in Plaintiff United States' Brief in Support of Its Motion for Summary Judgment ("Plaintiff's Brief"), which has been filed with the Court, and the United States relies on those facts and arguments to support this Response. Other factual assertions, or clarification of inaccurate factual citations by Defendant in Defendant's Brief in Support of It's Motion for Summary Judgment ("Defendant's Brief") are contained in the Argument below.


TABLE OF AUTHORITIES

Page
I. Cases
Anderson v. Little League Baseball, Inc., 794 F. Supp. 342 (D. Az. 1992) 4-5
Beer v. City of Fraser Civil Serv. Comm'n, 338 N.W.2d 197 (Mich. Ct.
App. 1983) 17-18
Bombrys v. City of Toledo, 849 F. Supp. 1210 (N.D. Ohio 1993) 12
Brown County v. Labor & Industry Review Comm'n,
369 N.W.2d 735 (Wis. 1985) 3
Cecil v. Gibson, 820 S.W.2d 361 (Tenn. App. 1991) 2-3
Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993), cert. denied,
114 S. Ct. 1386 (1994) 3, 7 n.3
City of Los Angeles Dept. of Water & Power v. Manhart
435 U.S. 702 (1978) 20
Cook v. State of Rhode Island, 10 F.3d 17 (1st Cir. 1993) 2, 3
Colorado Civil Rights Comm'n v. North Washington Fire Protection Dist.,
772 P.2d 70 (Colo. 1989) 3
DeGrace v. Shelby Township Police and Fire Civil Serv. Comm'n,
389 N.W.2d 137 (Mich. Ct. App. 1986) 17
DiPompo v. West Point Military Academy,
770 F. Supp. 887 (S.D.N.Y. 1991) 5 n.2
Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992) 6
E. E. Black, Ltd. v. Marshall, 497 F. Supp. 1088 (D. Haw. 1980) 2
E.E.O.C. v. Wooster Brush Co. Employees Relief Ass'n,
727 F.2d 566 (6th Cir. 1984) 20
Greenwood v. State Police Training Center, 606 A.2d 336 (N.J. 1991) 6, 11
Konyha v. Mount Clemens Civil Serv. Comm'n, 224 N.W.2d 833 (Mich. 1975) 17-18
Righter v. Civil Serv. Comm'n of Adrian, 136 N.W.2d 718 (Mich. Ct. App. 1965) 17-18
Roe v. District of Columbia, 842 F. Supp. 563 (D.D.C. 1993) 6-7
Sarsycki v. United Parcel Serv., 862 F. Supp. 336 (W.D. Okla. 1994) 4, 7 n.3
Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) 19
Page
Small v. City Manager of Saginaw, 197 N.W.2d 850 (Mich. Ct. App. 1972) 17
Terbovitz v. Fiscal Court of Adair County, 825 F.2d 111 (6th Cir. 1987) 20
United States v. State of Illinois, No. 93-C-7741, 1994 WL 562180
(N.D. Ill. Sept. 12, 1994) 19-20
Vanguard Justice Soc'y, Inc. v. Hughes, 471 F. Supp. 670 (D. Md. 1979) 19

II. Statutes and Regulations
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(a) 19-20, 19 n.24
Mich. Comp. Laws Ann. § 38.501 et seq. (West 1995) 15-18
Mich. Comp. Laws Ann. § 117.1 et seq. (West 1995) 16-17
29 C.F.R. Pt. 1630 1, 5
29 C.F.R. Pt. 1630, App. passim



  1. ARGUMENT




    1. Dennis Henderson Is an Individual with a Disability under the ADA Because the Defendant Has Regarded Henderson as Having a Disability

In Part I of Defendant's Brief, Defendant asserts that Plaintiff's complaint should be dismissed because Henderson is not "disabled" within the meaning of the ADA. Defendant's Brief at 15-23. This argument should be rejected because undisputed facts demonstrate that, as a matter of law, Defendant has regarded Henderson as having a disability.

To support its arguments on the question of disability, Defendant first asserts that Henderson is not substantially limited in a major life activity. Defendant admits that "Mr. Henderson is able to function exceptionally both at work and socially despite his monocularity." Id. at 19. After reviewing Henderson's work history, including his work experience in the Wixom Fire Department, Defendant concludes that "no reasonable mind could find that Mr. Henderson is substantially limited in his ability to work." Id. at 21. Finally, Defendant states: "It is beyond reasonable dispute that Mr. Henderson does not suffer from a physical defect which 'substantially limits his ability to work.'" Id. Defendant has also admitted that Henderson's monocular vision does not substantially limit him in being a fire fighter. See Plaintiff's Brief, Exhibit 5 Nos. 36-39. Plaintiff agrees with Defendant, and urges this Court to consider them in ruling that Henderson cannot pose a direct threat because he has no substantially limiting impairment and is not limited in his ability to work safely as a fire fighter and granting summary judgment in favor of Plaintiff.

However, Defendant is incorrect when it asserts that Henderson has not been "regarded as" having a disability. Under the ADA, if the Defendant treated Henderson as if he had an impairment that substantially limits a major life activity, then Henderson has a disability. 29 C.F.R. § 1630.2(l)(3). Undisputed facts demonstrate that the City of Pontiac regarded Henderson as being substantially limited in two major life activities: working and seeing.

First, admissions in the form of Rule 30(b)(6) deposition testimony establish that the City of Pontiac assumed that Henderson would be unable to perform job functions which do not require superior visual abilities, such as cleaning equipment or sketching buildings. Plaintiff's Brief at 15-16. By asserting that Henderson was unable to perform these visual functions, Defendant has regarded Henderson as substantially limited in seeing and therefore as having a disability.

Second, other admissions establish that Pontiac regarded Henderson as unable to work in an entire class of jobs: the class of fire fighting jobs. Plaintiff's Brief at 17-19. While this is sufficient to establish that Defendant regarded Henderson as substantially limited in working, it is also established that Defendant regarded Henderson as unable to perform in a broad range of jobs in various classes: for example, public safety jobs, jobs requiring driving, cleaning, inspecting or sketching, and other jobs. Plaintiff's Brief at 19-20. Consequently, the City also regarded Henderson as having a disability because it regarded him as substantially limited in working.

Defendant does not challenge these undisputed facts, and instead relies on inapposite caselaw. For example, Defendant's reliance on Cecil v. Gibson, 820 S.W.2d 361 (Tenn. App. 1991), is misplaced. First, Cecil did not even address the issue of being regarded as substantially limited in seeing, and its holding as to being regarded as substantially limited in "working" was fact specific and inapplicable. In Cecil, the Court rejected plaintiff's arguments that he was regarded as having a disability because, contrary to the instant case, the only evidence relied upon by Cecil was his rejection from one trainee position. Id. at 366. In contrast, Defendant's standards apply to every position in its Department, including fire fighter, engineer, fire officer, paramedic or EMT. Further, in Cecil, the standards at issue applied only to police officer trainees in the City of Nashville; in the present case, Defendant is relying on NFPA standards which are issued nationally and which purport to apply every person engaged in any fire fighting, rescue, or other emergency service across the country. Plaintiff's Brief at 18. Consequently, Henderson has been regarded as unable to work in every one of these positions.

Further, Cecil, a state court decision based on state law, is inapplicable because it has been directly contradicted by federal courts interpreting federal law. See, e.g., E. E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1100 (D. Haw. 1980) (Where an employer refuses to hire an individual because of a perceived impairment, a legal presumption arises "that all employers offering the same job or similar jobs would use the same requirement or screening process."); Cook v. State of Rhode Island, 10 F.3d 17, 25-26 (1st Cir. 1993) (same). Indeed, other state courts, utilizing disability definitions that are identical to the ADA, have rejected the approach taken by Cecil. See, e.g., Colorado Civil Rights Comm'n v. North Washington Fire Protection Dist., 772 P.2d 70, 79 (Colo. 1989) (fire fighter applicant with 20/50 vision, who was denied employment because of his vision, was, as a matter of law, "regarded as" having a handicap); Brown County v. Labor & Industry Review Comm'n, 369 N.W.2d 735, 741 (Wis. 1985) (applicant for deputy sheriff positions who was refused employment because his vision was 20/400, correctable to 20/20, was "regarded as" having a handicap).

Defendant's reliance on Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993), cert. denied, 114 S. Ct. 1386 (1994) is also misplaced. In Chandler, the employer recognized the plaintiffs' "ability to perform most of the duties associated with their respective positions." 2 F.3d at 1393. It believed that the plaintiffs were disqualified from performing one particular task of their jobs: driving in jobs in which they would be "primary drivers." Id. Here, however, the City of Pontiac's reasons for disqualifying Henderson were not limited to one specific task or one specific job site. Rather, the City acted on the basis of an unfounded presumption that
Henderson's vision disqualified him from the entire class of fire fighting jobs, and numerous other jobs outside of fire fighting. See Plaintiff's Brief at 17-20. That categorical disqualification demonstrates that the city "regarded" Henderson as being substantially limited in his ability to work.


    1. Defendant Has Failed to Rebut Undisputed Evidence that Henderson Is Qualified Within the Meaning of the ADA

Defendant fails to rebut Plaintiff's demonstration that Henderson was qualified for Pontiac's entry-level fire fighter position because Defendant confuses the question of "qualified" -- part of plaintiff's prima facie case, with "direct threat" -- an affirmative defense which Defendant must plead and prove, and because the facts proving that Henderson is qualified are uncontroverted.

The ADA and the title I regulation makes clear that safety and direct threat factors are not part of the determination of whether an individual is qualified, and that direct threat must be pleaded and proved as an affirmative defense. "Direct threat" appears under "Defenses" in the statute and regulation. 42 U.S.C. § 12113(b); 29 C.F.R. 1630.2(r). Interpretive Guidance to the regulation further supports the principle that safety issues must be presented as an affirmative defense rather than a part of a plaintiff's prima facie case.

Many individuals with disabilities objected to the inclusion of the direct threat reference in [section 102] and asked the Commission to clarify that the direct threat standard must be raised by the covered entity as a defense. In that regard, they specifically asked the Commission to move the direct threat provision from § 1630.10 (qualification standards) to § 1630.15 (defenses). The Commission has deleted the direct threat provisions from § 1630.10 and has moved it to § 1630.15.


29 C.F.R. pt. 1630 App. 1630.10 (emphasis added).

Under title I, a plaintiff must prove, as part of its prima facie case, that an individual with a disability was qualified for the position at issue. "Qualified" means being able to perform the essential functions of the job, with or without reasonable accommodation. 42 U.S.C. § 12111(8). "Qualified" does not include safety considerations, since those considerations arise under the affirmative defense of "direct threat." Sarsycki v. United Parcel Serv., 862 F. Supp. 336, 340 (W.D. Okla. 1994).

Thus, Defendant's case and statutory citations and arguments under "qualified" are actually irrelevant to that determination, because they are based on direct threat considerations. Cases brought under the Rehabilitation Act of 1973, including those cited by Defendant, are also irrelevant to this point; while Rehabilitation Act cases are persuasive authority in other ADA title I issues, they are not controlling when conducting a "direct threat" analysis, since title I, unlike the Rehabilitation Act, explicitly established "direct threat" as an affirmative defense.

Defendant cannot credibly contest that Henderson was qualified within the meaning of title I, in light of Henderson's extensive prior experience as a fire fighter and outstanding scores on Defendant's entrance exams.1 Plaintiff's Brief at 21-22. Defendant has also offered no evidence that Henderson's experience in Wixom should not be relevant to his qualifications to be a fire fighter in Pontiac. See Anderson v. Little League Baseball, Inc., 794 F. Supp. 342, 345 (D. Az. 1992) (court accorded "great weight" to individual's previous experience coaching and found that defendant's exclusion of coaches who use wheelchairs violated the ADA).2



    1. Even Assuming Defendant Is Permitted to Assert a Direct Threat Defense, Defendant Has not Proven Henderson Would Pose a Direct Threat Under the ADA

Defendant asserts that Plaintiff's complaint should be dismissed because of direct threat considerations. However, Defendant cannot, as a matter of law, be shielded by the direct threat defense, because (1) Defendant has admitted that its exclusionary standard is not job-related or consistent with business necessity, (Plaintiff's Brief at 34-35); (2) Defendant admitted that it failed to consider any reasonable accommodation to reduce any perceived risk, as required under the ADA, (Id. at 33-34); (3) Defendant admitted it did not conduct an individualized assessment of Henderson, as required to assert the defense, (Id. at 30-33); and (4) Henderson cannot pose a direct threat because he has no actual disability, (Id. at 35-36).

Even assuming arguendo that Defendant may assert a direct threat defense, Defendant has not proved such a defense as a matter of law. To be entitled to summary judgment on a direct threat affirmative defense, Defendant must prove as a matter of law that there is no genuine issue of material fact that Dennis Henderson poses a significant risk of substantial harm to himself or others. 29 C.F.R. 1630.2(r). Defendant's direct threat defense must fail because the evidence on which Defendant relies is based on mere speculation and ignores concrete, uncontested factual evidence showing that Henderson and other monocular fire fighters do not pose a direct threat.

According to the interpretive guidance to the ADA, the determination that an individual poses a direct threat must be based on valid, factual evidence, not "common sense" or speculation.

The guidance states:

Such consideration must rely on objective, factual evidence -- not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes -- about the nature or effect of a particular disability.

* * *

The assessment that there exists a high probability of substantial harm to others, must be strictly based on valid medical analyses and/or other objective evidence.


29 C.F.R. pt. 1630, App. 1630.2(r) (direct threat).

The title I regulation specifies that an employer must prove that the risk is significant, not merely slight or theoretical. "An employer, however, is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk; i.e., high probability of substantial harm; a speculative or remote risk is insufficient." 29 C.F.R. pt. 1630, App. 1630.2(r) (direct threat) (emphasis added).

For instance, in a case under an analogous statute, the Court in Greenwood v. State Police Training Ctr., 606 A.2d 336, 342 (N.J. 1991) struck down a police academy's exclusion of a trainee with monocular vision. The court stated that exclusion was improper "unless there is substantial evidence that that limitation either prevents an employee from adequately performing the job or creates a substantial risk of serious injury to the employee or others." Id. at 342 (emphasis added). The Court emphasized that the visual limitation must "significantly" increase the risk that is posed to individuals without such a disability. Id. The Court also dismissed the opinions of defendant's expert, because although he speculated that the plaintiff might be at greater risk, he offered no "objective medical evidence" in support of this opinion. Id. Similarly, in Doe v. District of Columbia, 796 F. Supp. 559 (D.D.C. 1992), the court struck down defendant's exclusion of HIV-positive persons from fire fighter positions, finding that defendant had failed to demonstrate that the risk of HIV transmission during emergency duties was significant. Id. at 569; see also Roe v. District of Columbia, 842 F. Supp. 563 (D.D.C. 1993) (fire fighter with hepatitis B does not pose a direct threat in performing CPR, because the risk of transmission is purely theoretical).3

Most importantly, Defendant, rather than independently assessing any risks it believed would be posed by hiring Henderson, summarily relied on the NFPA 1582 standard. Reliance on that standard cannot support a direct threat defense, because the standard was based on unscientific conjecture rather than valid factual research.4 The committee had no members with vision expertise. No ophthalmologist or optometrist served on the committee or was consulted by the committee. Vance Dep. (Exhibit 48) at 64; Rebuttal Expert Witness Report of James Melius, M.D. (Exhibit 54). The committee relied for its vision standards on Dr. Fedoruk, a specialist in toxicology and emergency medicine, not vision. Gerkin Dep. (Exhibit 47) at 40, 46-48. The committee based its decision to categorically exclude all individuals with monocular vision on what it claimed was "common sense." Exhibit 48 at 85-86. It did not obtain any data regarding individuals with monocular vision; nor did it obtain testimony or other evidence from such individuals or their supervisors. Id. at 76-78, 82. The committee never performed any validation study to support its vision standards. Fedoruk Dep. (Exhibit 49) at 67-69. The committee did not rely on scientific information or studies and had no information on monocular fire fighters. Exhibit 48 at 90-91, 102-03; Exhibit 47 at 60. The committee engaged in little discussion of its binocular vision requirement,5 and the single item of research or data distributed to the committee regarding vision was a study having no application to monocular vision.6 Prior to this litigation, Dr. Fedoruk himself expressed concern about applying the results of this study of a single fire department to other fire departments. See Letter from Dr. M. Fedoruk to Tom Healy, dated January 10, 1989 (Exhibit 50).7

Similarly, the opinions of Defendant's witnesses in this action are based on speculation rather than factual evidence. Plaintiff disputes the opinion of Defendant's witness, cited in Defendant's Brief, regarding stereopsis and depth perception in monocular fire fighters. See Defendant's Brief at 13-14.8 Frank Landy, Ph.D., an expert in fire fighting job tasks and perceptual skills,9 explains that a monocular fire fighter's depth perception is more than adequate to perform safely the functions of fire fighting, because depth perception is far more dependent upon experience and "monocular cues" -- environmental indicators that are perceived equally well by individuals with monocular vision and those with binocular vision -- than it is on having two eyes. A fire fighter's ability to perform tasks such as spotting ladders, estimating distances, driving and parking emergency vehicles and other tasks that require depth perception is determined principally by the amount of that fire fighter's prior experience in performing those tasks and by monocular cues rather than stereopsis. Binocular vision and stereopsis are largely irrelevant to fire fighting. Landy Dep. (Exhibit 56) at 103.

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