IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

C.A. NOS. 96-K-370 & 93-K-2263

UNITED STATES OF AMERICA,	)

)

JACK L. DAVOLL; DEBORAH A. CLAIR;	)

and PAUL L. ESCOBEDO,	)

)

Plaintiffs,	)

)

v.	)

)

)

THE CITY AND COUNTY OF	)

DENVER; THE DENVER POLICE	)	Hon. John L. Kane Jr.

DEPARTMENT; and THE CIVIL	)

SERVICE COMMISSION FOR THE	)

CITY AND COUNTY OF DENVER,	)

)

Defendants.	)

)

UNITED STATES' MEMORANDUM

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

ON LIABILITY UNDER TITLE I IN CIVIL ACTION NO. 96-K-370

TABLE OF CONTENTS

I.	INTRODUCTION	1

II.	STANDARD FOR SUMMARY JUDGMENT	4

III.	ARGUMENT

A.	THE UNITED STATES HAS ESTABLISHED A PRIMA FACIE CASE OF LIABILITY IN A PATTERN OR PRACTICE CASE OF EMPLOYMENT DISCRIMINATION UNDER THE ADA	5

1.	DEFENDANTS ARE COVERED ENTITIES UNDER
TITLE I OF THE ADA	6

2.	DEFENDANTS' POLICY BARS THE REASSIGNMENT OF OFFICERS WITH DISABILITIES TO VACANT POSITIONS
FOR WHICH THEY ARE QUALIFIED	6

3.	DEFENDANTS' POLICY DISCRIMINATES AGAINST "QUALIFIED INDIVIDUALS WITH DISABILITIES"
COVERED BY TITLE I	6

a.	Title I of the ADA Obligates Employers to Provide "Reasonable Accommodation" to Employees with
Disabilities	6

b.	The ADA'S Title I "Reasonable Accommodation"
Obligation Includes Reassignment	6

c.	The ADA Requires Defendants to Make Reasonable Changes in Their Regular Reassignment Policies, Practices, and Procedures in Order to Provide Equal Opportunities to Qualified Individuals with Disabilities	9

B.	DEFENDANTS CANNOT ESTABLISH THE AFFIRMATIVE DEFENSE
OF "UNDUE HARDSHIP"

1.	DEFENDANTS HAVE THE BURDEN OF PROVING THAT REASSIGNMENT WILL RESULT IN SIGNIFICANT DIFFICULTY OR EXPENSE	12

2.	DEFENDANTS HAVE NO FACTUAL BASIS FOR A CLAIM
OF UNDUE HARDSHIP	13

3.	THE CITY AND COUNTY OF DENVER CHARTER DOES
NOT CREATE A LEGAL BAR TO REASSIGNMENT	14

4.	THE COST OF REASSIGNMENT DOES NOT CONSTITUTE
A SIGNIFICANT EXPENSE	16

5.	REASSIGNMENT WILL NOT DISRUPT DEFENDANTS' OPERATIONS	18

IV.	CONCLUSION	19

TABLE OF AUTHORITIES

I.	Cases	Page

Alexander v. Choate, 469 U.S. 287 (1985)	10

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)	5

Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993)	12

Beck v. University of Wisc. Bd. of Regents, 1996 WL 29449
(7th Cir. 1996)	9

Benson v. Northwest Airlines, 62 F.3d 1108, 1114
(8th Cir. 1995)	8

Beveridge v. Lewis, 939 F.2d 859 (9th Cir. 1991)	15

Bryant v. Better Business Bureau of Greater Md., Inc.,
923 F. Supp. 720 (D. Md. 1996)	12, 14

Buckingham v. United States, 998 F.2d 735 (9th Cir. 1993)	14

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)	5

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984)	7, 13

City of Burbank v. Lockheed Air Terminal, Inc.,
411 U.S. 624 (1973)	15

Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995)	10

Don't Tear It Down, Inc. v. Pennsylvania Ave. Dev. Corp.,
642 F.2d 527 (D.C. Cir. 1980)	15

Emrick v. Libbey-Owens-Ford, 875 F. Supp. 393
(E.D. Tex. 1995)	9

Evans v. Evans, 818 F. Supp. 1215 (N.D. Ind. 1993)	15

Free v. Bland, 369 U.S. 663 (1962)	15

Gibbons v. Ogden, 22 U.S. 1 (1824)	4, 15

Gilbert v. Frank, 949 F.2d 637 (2d Cir. 1991)	14

Griggs v. Duke Power, 401 U.S. 424 (1971)	7

Guice Mills v. Derwinski, 967 F.2d 794 (2d Cir. 1992)	8

Haysman v. Food Lion Inc., 893 F. Supp. 1092
(S.D. Ga. 1995)	8

Henchey v. Town of North Greenbush, 831 F. Supp. 960
(N.D.N.Y. 1993)	14

Hillsborough County, Fla. v. Automated Medical Lab. Inc.,
471 U.S. 707 (1985)	15

Hogue v. MQS Inspection, Inc., 875 F. Supp. 714
(D. Colo. 1995)	8

International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977)	5

Leslie v. St. Vincent New Hope, Inc., No. IP 94-0922-C H/G,
1996 WL 69550 (S.D. Ind. 1996)	9

Nelson v. Thornburgh, 567 F. Supp. 369 (E.D. Pa. 1983),
aff'd, 732 F.2d 146 (3d Cir. 1984)	13, 17

North Dakota v. United States, 495 U.S. 423 (1990)	15

Philbin v. General Electric Capital Auto Lease, 929 F.2d 321
(7th Cir. 1991)	7

Shiring v. Runyon, No. 95-3547, 1996 WL 417636 (3rd Cir. 1996)	8

Thompson v. Borg-Warner Protective Servs. Corp.,
No. C-94-4015 MHP, 1996 WL 162990 (N.D. Cal. 1996)	13

Vande Zande v. Wisconsin Dep't of Admin., 851 F. Supp. 353
(W.D. Wis. 1994), aff'd, 44 F.3d 538 (7th Cir. 1995)	8, 9

Vazquez v. Bedsole, 888 F. Supp. 727 (E.D.N.C. 1995)	8

White v. York Int'l Corp., 45 F.3d 357 (10th Cir. 1995)	8

II.	Constitutions, Statutes, Regulations, and Legislative Materials

Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. § 12101 et. seq.	passim

City and County of Denver Charter	passim

H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2 (1990)	8

29 C.F.R. pt. 1630, app.	passim

U.S. Constitution, art. VI, cl. 2	4, 15

III.	Court Rules

Fed. R. Civ. P. 56(c)	4

I.	INTRODUCTION

Each year, several patrol officers ("officers") employed by the City and County of Denver Police Department ("DPD") become disabled -- some due to injuries suffered in the line of duty -- such that they can no longer effect a forcible arrest or shoot a weapon. Although these officers may have served on the DPD's police force for many years, they are not reassigned to jobs they still can perform. Instead, they are required to retire on disability. The City and County of Denver ("City") refuses to reassign them to vacancies for which they are qualified, within the DPD or elsewhere in the City and County. The financial repercussions for the officers are great: disability pensions may be less than half of the officers' former salaries, and officers on disability are responsible for securing their own health insurance. See Appendix A, Plaintiff United States' Statement of Undisputed Facts ("Fact") Nos. 46, 47.

The City's policy discriminates in employment on the basis of disability in violation of both title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112, and title II of the ADA, 42 U.S.C. § 12132.1 The United States' Motion for Summary Judgment on Liability is limited to the United States' claim under title I; namely, that Defendants'2 policy results in a pattern or practice of employment discrimination against individuals with disabilities.3 Specifically, Defendants' policy precludes them from making "reasonable accommodation" to the known physical limitations of qualified individuals with disabilities, in violation of 42 U.S.C. § 12112(b)(5)(A).

The ADA defines unlawful discrimination to include the failure to make reasonable accommodation to an otherwise qualified employee with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. 42 U.S.C. § 12112(b)(5)(A). The ADA specifically includes "reassignment to a vacant position" in its definition of reasonable accommodation. Id. § 12111(9)(B).

Defendants admit that they have a policy that prohibits officers with disabilities from being reassigned4 to Career Service or non-sworn (civilian) vacancies located within the DPD or elsewhere in the City. Defendants claim, however, that this policy is required by the Charter for the City and County of Denver ("Charter"), which establishes several different personnel systems for City employees. The Charter provision on which Defendants rely establishes the "Classified Service" personnel system for police officers and fire fighters, and the "Career Service" personnel system for the remaining City employees. Defendants contend that because the Charter does not affirmatively provide for transfers between these personnel systems, disabled officers cannot be reassigned to Career Service vacancies. See Appendix A, Fact Nos. 18-22, 72-75.

For the vast majority of City employees this bar on transfers between personnel systems is not of great moment: 9,500 of the City's 12,000 strong workforce are employees of the Career Service, which has a transfer policy specifically designed for employees with disabilities, as well as a separate transfer policy for non-disabled employees. The disability transfer policy permits Career Service employees who develop disabilities such that they cannot perform their current positions to transfer to other Career Service jobs for which they are still qualified. Because there are nearly a thousand different job classifications within the Career Service, and hundreds of positions vacant each month, Career Service employees who develop disabilities but can still work are not likely to have difficulty remaining employed by the City. Appendix A, Fact Nos. 4, 5, 27, 29, 85-87.

In contrast, the Classified Service -- although it has a general transfer policy -- has no available positions to which officers with disabilities can transfer. This is because the DPD requires every member of its sworn force of nearly 1,500, no matter what his or her actual duties, to be able to shoot a weapon and effect a forcible arrest.5 The result of this requirement is that there are no positions to which officers whose disabilities prevent them from being able to shoot a weapon and effect a forcible arrest can transfer within the Classified Service. Appendix A, Fact Nos. 6, 14-17, 19, 23.

If disabled officers seek to retain City employment, the only avenue remaining is to compete for Career Service jobs as brand-new applicants for City employment. No credit is given to disabled officers for their years of service to the City; they must undergo whatever entry-level tests and interview assessments are required for external applicants, and compete with these applicants as though they had never before worked for the City. Since Career Service vacancies often draw hundreds of applicants, this is no small feat. Appendix A, Fact No. 15.

Because Defendants do not dispute the existence of their "no reassignment" policy, this case is ideally suited for summary judgment. Liability here is purely a question of law: namely, whether the City can refuse to reassign employees with disabilities to vacancies they can perform based on a Charter provision establishing separate personnel systems. The United States maintains that Defendants cannot do so consistent with the ADA.

The only defense available to a reasonable accommodation claim is "undue hardship," which Defendants cannot establish. Defendants admit that they have never actually assessed or studied the costs or burdens of reassigning officers with disabilities to Career Service positions. Appendix A, Fact Nos. 53-62. The United States does not contend that Defendants must create one entity responsible for all City personnel functions rather than maintaining several personnel systems. What the United States does contend is that Defendants cannot rely on their structure of separate personnel systems to shield them from compliance with the ADA. The ADA prohibits Defendants from perpetuating a structure that builds a "wall" between personnel systems for purposes of reassignment. If Defendants' Charter is read to preclude reassignment, the provision at issue is preempted insofar as it conflicts with the ADA.6 Even if the provision were not preempted, Defendants would be required to change their reassignment policy by amending the Charter. Of course, if the Charter is not read to preclude reassignment, Defendants need not amend the Charter in order to comply with the ADA; they need only establish a policy whereby officers with disabilities are permitted to transfer to Career Service positions.

II.	STANDARD FOR SUMMARY JUDGMENT

Under Fed. R. Civ. P. 56(c), summary judgment is proper only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at 248. An issue of fact concerns "material" facts only if establishment thereof might affect the outcome of the lawsuit under governing substantive law. Id. The burden of proving that no issue of material fact exists falls upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court must view all inferences drawn from the underlying facts in a light most favorable to the party opposing the motion, and must resolve all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 261. The undisputed facts of this case support a finding of summary judgment in favor of the United States.

III.	ARGUMENT

A.	THE UNITED STATES HAS ESTABLISHED A PRIMA FACIE CASE OF LIABILITY IN A PATTERN OR PRACTICE CASE OF EMPLOYMENT DISCRIMINATION UNDER THE ADA7

In order to prove a prima facie case of liability in a pattern or practice case of employment discrimination under the ADA, the United States must establish that (a) defendant is a covered entity under title I; (b) defendant's policy or practice is undisputed; and (c) defendant's policy or practice discriminates against "qualified individuals with disabilities." The undisputed facts establish a prima facie case of liability.

1.	DEFENDANTS ARE COVERED ENTITIES UNDER TITLE I OF THE ADA

Defendants admit they are persons, employers, and covered entities within the meaning of title I. Appendix A, Fact Nos. 1-3.

2.	DEFENDANTS' POLICY BARS THE REASSIGNMENT OF OFFICERS WITH DISABILITIES TO VACANT POSITIONS FOR WHICH THEY ARE QUALIFIED

Defendants further admit that they have a policy and practice that prohibits the reassignment of officers who develop disabilities to Career Service or non-sworn (civilian) vacancies. Appendix A, Fact Nos. 14-21.

3.	DEFENDANTS' POLICY DISCRIMINATES AGAINST "QUALIFIED INDIVIDUALS WITH DISABILITIES" COVERED BY TITLE I

a.	Title I of the ADA Obligates Employers to Provide "Reasonable Accommodation" to Employees with Disabilities

The ADA defines unlawful discrimination to include the failure to make reasonable accommodation to an otherwise qualified employee with a disability, unless the employer can show that the accommodation would impose an undue hardship on the operation of its business. 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done in order to allow a qualified individual with a disability to enjoy equal employment opportunity. 29 C.F.R. app. § 1630.2(o) at 406-07.

b.	The ADA'S Title I "Reasonable Accommodation" Obligation Includes Reassignment

The ADA specifically includes "reassignment to a vacant position" in its definition of reasonable accommodation. 42 U.S.C. § 12111(9)(B).8 Reassignment need only be to "an equivalent position, in terms of pay, status, ... if the individual is qualified, and if the position is vacant within a reasonable amount of time." 29 C.F.R. app. § 1630.2(o) at 408.9 Committee reports describing the final ADA legislation chronicle Congress's steadfast intent to remove barriers confronting the disabled worker by explicitly including reassignment as a reasonable accommodations:

Reasonable accommodation may also include reassignment to a vacant position. If an employee, because of disability, can no longer perform the essential functions of a job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and employer from losing a valuable worker.

H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 305 (emphasis added).10

Courts have routinely recognized reassignment as a form of reasonable accommodation. See White v. York Int'l Corp., 45 F.3d 357, 362 (10th Cir. 1995) (reassignment to a vacant position is possible accommodation); Benson v. Northwest Airlines, 62 F.3d 1108, 1114 (8th Cir. 1995) (same). The court in Vande Zande v. Wisconsin Dep't of Admin., 851 F. Supp. 353 (W.D. Wis. 1994), aff'd, 44 F.3d, 538 (7th Cir. 1995), found that "offering an employee a new position without a reduction in pay or benefits is a reasonable accommodation 'virtually as a matter of law.'" Id. at 361 (quoting Guice-Mills v. Derwinski, 967 F.2d 794, 798 (2d Cir. 1992)); see also Hogue v. MQS Inspection, Inc., 875 F. Supp. 714, 721 (D. Colo. 1995); Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1104 (S.D. Ga. 1995); and Vazquez v. Bedsole, 888 F. Supp. 727, 731 (E.D.N.C. 1995) (all recognizing reassignment as a form of reasonable accommodation).

c.	The ADA Requires Defendants to Make Reasonable Changes in Their Regular Reassignment Policies, Practices, and Procedures in Order to Provide Equal Opportunities to Qualified Individuals with Disabilities

Reassignment as a means of reasonable accommodation is more than making the usual opportunities available on a nondiscriminatory basis; it requires a change in the usual policy where doing so is "reasonable." Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538, 542-43 (7th Cir. 1995) ("It is plain enough what 'accommodation' means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work."); see also Beck v. University of Wisc. Bd. of Regents, No. 95-2479, 1996 WL 29449, at *3 (7th Cir. Jan. 26, 1996).

Some courts have interpreted reasonable accommodation to require employers to reassign qualified individuals with disabilities to vacant positions if, and only if, the employer has a regular practice or policy of reassigning non-disabled employees to other positions.11 But this interpretation makes a nullity of the ADA's inclusion of reassignment as a form of reasonable accommodation. If reassignment is only required where a reassignment policy already exists for all employees, there would be no need for the ADA to require that it be provided for employees with disabilities. Congress clearly did not intend to limit reassignment for qualified individuals with disabilities to situations where reassignment is already generally available.

There is no question that the ADA forces employers to move beyond the traditional analysis used to appraise non-disabled workers and to consider reassignment to a vacant position as a method of enabling a disabled worker to do the job without creating undue hardship. See, e.g., Leslie v. St. Vincent New Hope, Inc., No. IP 94-0922-C H/G, 1996 WL 69550, at *9 (S.D. Ind. Feb. 7, 1996) (the ADA may require reassignment even if the employer does not have a regular policy or practice of permitting non-disabled employees to transfer).12

In the present case, the employer -- the City and County of Denver -- already has a regular practice or policy of reassignment. Both the Career Service and Classified Service personnel systems have transfer policies that allow non-disabled employees to transfer to other positions of the same or similar classifications. Appendix A, Fact Nos. 7-11, 26-28. The ADA here would not require the creation of a reassignment policy where none existed before, but rather only modification of practices that prohibit transfers across personnel systems.13

The case of Jack Davoll ("Davoll"),14 a patrol officer who served on the DPD for nineteen years, aptly illustrates how Defendants' reassignment policy discriminates against qualified individuals with disabilities. Davoll suffered injuries in the line of duty which resulted in a physical impairment that substantially limits a major life activity within the meaning of the ADA.15 Davoll is an individual with a disability under the ADA.16 Appendix A, Fact Nos. 31-44.

Davoll is also a "qualified individual with a disability who with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires," 42 U.S.C. § 12111(8), as his breadth of police experience and years of satisfactory performance in the DPD demonstrate. During his nineteen-year tenure with the DPD, Davoll gained important experience that is relevant for a wide range of non-
sworn positions including an investigator, lab technician, firearms instructor, or dispatcher. Defendants do not dispute that Davoll requested reasonable accommodation for his disability. Defendants also do not dispute that their policy precluded them from granting Davoll's reassignment requests. Appendix A, Fact No. 31.

B.	DEFENDANTS CANNOT DEMONSTRATE THAT ALLOWING REASSIGNMENT WOULD RESULT IN UNDUE HARDSHIP

1.	DEFENDANTS HAVE THE BURDEN OF PROVING THAT REASSIGNMENT WILL RESULT IN SIGNIFICANT DIFFICULTY OR EXPENSE

Defendants bear the burden of proving the affirmative defenses raised in their Answer.17 The only defense available to a reasonable accommodation claim is "undue hardship," which Defendants cannot establish.

Under the ADA, "undue hardship" is "an action requiring significant difficulty or expense." 42 U.S.C. § 12111(10)(A).18 Undue hardship "refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business."19 Criteria used to establish this defense include: the size of the employer; the size of its budget; nature of its operation; number of employees; structure of its workforce and the nature and cost of the accommodation. Id. The larger the employer, the larger the budget and the greater the burden it will be expected to assume. See, e.g., Nelson v. Thornburgh, 567 F. Supp. 369, 376 and 380 (E.D. Pa. 1983); EEOC Title I Technical Assistance Manual at III-12.20

2.	DEFENDANTS HAVE NO FACTUAL BASIS FOR A CLAIM OF UNDUE HARDSHIP21

Defendants concede that they have never performed any analysis of the cost or difficulty of providing an accommodation by reassignment. Defendants admit they have no idea what the cost to the City would be of adopting a policy whereby officers with disabilities could transfer to the Career Service. Appendix A, Fact Nos. 50-67.

In order to withstand judicial scrutiny, an employer's undue hardship defense must have a strong factual basis. Bryant v. Better Business Bureau of Greater Md., Inc., 923 F. Supp. at 740-41 (D. Md. 1996). In Bryant, an employer raised undue hardship as a defense for its refusal to provide a TTY device22 as an accommodation to a hearing impaired employee. The court found that the employer's decision to deny the accommodation without consulting anyone or reviewing relevant literature demonstrated that the employer did not perform any genuine analysis of providing the TTY device as an accommodation. Id. at 741. Thus, the court, in denying the employer's motion for partial summary judgment, held that:

[A]lthough [the employer was] not required to determine with mathematical certainty whether the TTY system would have caused [it] an 'undue hardship,' a decision lacking any substantial evidentiary basis whatsoever is clearly insufficient.... In sum, the [employer has] failed to meet [its] burden with respect to the undue hardship defense.

Id.; see also Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993) ("An employer, to meet its burden under the [Rehabilitation] Act, may not merely speculate that a suggested accommodation is not feasible."); Henchey v. Town of North Greenbush, 831 F. Supp. 960, 965 (N.D.N.Y. 1993) (under the Rehabilitation Act, "the ultimate burden of proof on the issue of reasonable accommodation is on the employer.") (citing Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991)).

3.	THE CITY AND COUNTY OF DENVER CHARTER DOES NOT CREATE A LEGAL BAR TO REASSIGNMENT

The United States contends, and Defendants concede, that there is nothing in the Charter which expressly prohibits the reassignment of officers to vacancies in the Career Service. But Defendants nevertheless maintain that a Charter provision that establishes separate personnel systems for Classified Service and Career Service employees should be understood to preclude reassignment between personnel systems. Appendix A, Fact No. 73, 76-77.

Even if the Charter is interpreted to preclude reassignment, however, the provision at issue is preempted insofar as it conflicts with the ADA. Where a state or local law is inconsistent with the operation of a federal statute the state or local law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824).23 Any state or local law, however clearly within a jurisdiction's acknowledged power, "which interferes with or is contrary to federal law, must yield." Free v. Bland, 369 U.S. 663, 666 (1962).24

Absent preemption, Defendants can interpret or amend their Charter to provide for reassignment for officers with disabilities. Amending the Charter is not a complicated or expensive process, and is undertaken quite frequently; some five to seven proposed amendments are included on the ballot at election time each year.25 Appendix A, Fact Nos. 78-80. Further, the amendment would be simple to draft, and likely to pass. In 1978, a similar amendment to the Charter was enacted permitting certain members of the Classified Service of the Police Department to be appointed to Career Service positions without examination -- precisely what is needed here.26 Appendix A, Fact Nos. 79, 81-83. The same type of amendment would suffice to bring Defendants into ADA compliance here.

4.	THE COST OF REASSIGNMENT DOES NOT CONSTITUTE A SIGNIFICANT EXPENSE

The key component of the undue hardship defense is a calculation of the financial or administrative costs of the accommodation at issue relative to the entity's overall operations. Defendants admit that they have never actually assessed or studied the costs or burdens of the accommodation at issue here. Appendix A, Fact Nos. 53-62. To the extent these can be estimated, however, the undisputed facts show the administrative and financial costs to be negligible. Appendix A, Fact Nos. 51-62.

Each time that the Career Service Authority seeks to fill a vacancy, it expends resources. It must advertise the vacancy; recruit to fill the vacancy; assess the qualifications of applicants; test applicants; interview applicants; and rank applicants. Given that for some vacancies, the Career Service Authority receives hundreds of applications, the financial costs of filling a vacancy can be substantial. Appendix A, Fact Nos. 87-89.

Overall cost savings are likely to result from reassignment also because when officers are reassigned, the City retains the benefit of its investment in years of the employee's training and experience. Appendix A, Fact No. 25. Moreover, a reassignment policy for officers with disabilities is likely to save rather than cost additional resources due to the amount the State of Colorado expends on disability retirement pensions. Appendix A, Fact No. 45, 48-49.

Defendants employ nearly 12,000 individuals in facilities located all over the Denver metropolitan area. Given the size of the workforce, Defendants cannot argue that reassignment as a reasonable accommodation will strain its administrative resources or hamper any of its municipal functions.27 Appendix A, Fact No. 4. In light of the size of Defendants' budget ($500 million), the potential cost of modifying Defendants' policy to permit the reassignment of officers with disabilities to Career Service vacancies is de minimis. This is particularly true since the number of positions that would be affected by a change in the DPD's reassignment policy is small -- the number of officers who apply for disability retirement averages only four (4) officers per year. Appendix A, Fact Nos. 8, 16-17.

At least one court has found "undue hardship" in similar circumstances. See, e.g., Nelson v. Thornburgh, 567 F. Supp. 369, 376 and 380 (E.D. Pa. 1983) (court held that in view of the welfare department's large budget, requiring the department to reasonably accommodate blind income maintenance workers by providing readers was not an undue hardship.), aff'd, 732 F.2d 146 (3d Cir. 1984), cert. denied, 469 U.S. 1188 (1985).

5.	REASSIGNMENT WILL NOT DISRUPT DEFENDANTS' OPERATIONS

Defendants have argued that permitting reassignment would undermine the Career Service's "merit system." The Career Service Authority requires all applicants who are not transferees to complete various entrance examinations and interview assessments. Defendants contend that allowing officers -- who, of course, are already employees of the City, and were required to undergo rigorous training and examination to become officers -- would somehow weaken the "merit system." Appendix A, Fact Nos. 69-70, 84, 88.

As a threshold matter, officers with disabilities seeking reassignment under the ADA need be reassigned only to jobs for which they are qualified. Further, although applicants new to City employment must complete entrance examinations and interview assessments in order to ranked and placed on a "certification list," the hiring agency need not hire the highest ranking applicant, or indeed, anyone on the list. It could instead fill the position with a transferee, or someone seeking reemployment, for example. Defendants admit that there exist no criteria governing how hiring decisions are ultimately made, and that there is no tracking or monitoring by the Career Service of decisions by hiring agencies. Appendix A, Fact Nos. 88-92.

Even more importantly, the entry requirements for officers are just as, if not more rigorous than, entry requirements for Career Service jobs of similar status and pay. Treating officers with disabilities the same as brand-new applicants for City employment undervalues the significant training and experience officers with disabilities have obtained as employees of the City -- training that demonstrates qualification for various type of jobs in the Career Service. Appendix A, Fact Nos. 93-94.

Defendants cannot escape responsibility for complying with the ADA by attempting to characterize the Career Service and Classified Service personnel systems as inviolate, independently operating units which have no connection to each other. The City is the ultimate employer of all employees of every personnel system provided for in its Charter. It is the City that pays the salaries of every member of the Classified and Career Service. It is the City which establishes the operating budgets and determines the functions of its several personnel systems. And it is the City as a whole which is responsible for ensuring that the rights of all of its employees are protected under the ADA. Appendix A, Fact No. 9.

IV. CONCLUSION

For the foregoing reasons, the United States respectfully requests that the Court grant the United States' Memorandum In Support of Its Motion for Summary Judgment on Liability Under Title I In Civil Action No. 96-K-370.

Respectfully submitted,

DEVAL L. PATRICK

Assistant Attorney General

Civil Rights Division

By: ______________________

L. IRENE BOWEN

EUGENIA ESCH

SHEILA M. FORAN

Attorneys

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

CERTIFICATE OF SERVICE

I, Sheila Foran, hereby certify that the foregoing United States' Motion and Memorandum in Support of its Motion for Summary Judgment On Liability Under Title I in Civil Action No. 96-K-370 was served on August 15, 1996, via overnight express mail delivery, on the following counsel:

J. Wallace Wortham, Jr., Esq.

Wayne E. Vaden, Esq.

Grace Fell Regan, Esq.

Assistant City Attorneys

Department of Law

Office of City Attorney

Annex I - 303

1445 Cleveland Place

Denver, CO 80202

David C. Feola, Esq.

315 East Florida Avenue

Denver, CO 80210

Marilee Langhoff, Esq.

6628 South Marion St

Littleton, CO 80121

By: ________________________

SHEILA M. FORAN

Attorney

U.S. Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738