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3200 August 22, 1994
The Honorable Wellington E. Webb Mayor of the City and County of Denver City and County Building Denver, Colorado 80202 RE: Complaint Number XXXXXXXX Dear Mayor Webb: This letter constitutes the Department of Justice's (the Department) Letter of Findings with respect to allegations received by this office concerning violations of Title II of the Americans with Disabilities Act of 1990 (ADA) by the City and County of Denver (the City). Title II of the ADA, 42 U.S.C. 12131-12134, prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments. The allegations concern the denial of reasonable accommodations provided to XXXXXXXXXXXXXXX and his subsequent termination from the Denver Police Department in XXXXX XXXX. The regulation implementing Title II, at 28 CFR 35.140(a), prohibits employment discrimination against qualified individuals with disabilities. Title II adopts the legal standards of Title I of the ADA, 29 CFR Part 1630, which took effect in July 1992, and which also prohibits employment discrimination. 28 CFR 35.140(b). The Coordination and Review Section of the Civil Rights Division is responsible for the investigation and resolution of administrative complaints alleging violations of Title II by components of State and local governments in all programs, services, and regulatory activities relating to law
enforcement and public safety. 28 CFR 35.190(b)(6). As discussed in detail below, the Department finds that the City has violated Title II by its failure to provide a reassignment or transfer as a reasonable accommodation for XXXXXXXXXX, and by terminating him from the Police Department. Pursuant to 28 CFR 35.172, the Department is issuing this Letter of Findings and hereby informing the City that the Department is prepared to enter into negotiations in order to secure compliance by voluntary means, as provided in 28 CFR 35.173. FINDINGS OF FACT COMPLAINANT'S POSITION Officer XXXXXX alleged that the Denver Police Department violated Title II by failing to reassign or transfer him as a reasonable accommodation for his disability. He further alleges that this failure resulted in his termination from the City in April 1993. XXXXXXXXXX was a patrol officer in the Denver Police Department from XXXX until XXXX. During this period, he was seriously injured on three separate occasions while on duty. These injuries resulted in herniated and ruptured spinal disks in his back, pain in his legs, hip and heel, and loss of coordination in his legs, among other things. He sustained his most recent injury after a high speed chase and collision in XXXX. As a result, he was diagnosed with multiple degenerative disk disease, left shoulder scapular winging, and thoracic disk protrusion. These injuries, for which he has received ongoing medical treatment, restrict XXXXXXXXXX from walking up stairs, repetitive bending or lifting, standing for any length of time, engaging in physical recreation or sports, and many physical activities that those without disabilities can engage in. The injuries have resulted in chronic ongoing pain and discomfort. Physicians have told XXXXXXXXXX that he risks permanent paralysis if he reinjures his back. Based on the medical evaluations of City physicians, XXXXXXXXXX was deemed unable to return to full duty in XXXXXXXX. XXXXXXXXXX has a record of this impairment dating back to XXXX, when he first injured himself severely in the line of duty. His disability prevents him from performing law enforcement work as
an officer (e.g., security guard or correctional officer) and any work involving heavy labor or lifting (e.g., construction). XXXXXXXXXXXXXX was placed in a "light duty" desk job following his most recent injuries, which he sustained in XXXXXXX XXXX. Under the Police Department's personnel policies, injured officers must be able to return to "full duty" within 365 days or they are required to retire (usually on a disability pension). There are no permanent light duty positions provided to officers injured in the line of duty, nor are reassignments or transfers to other positions permitted. Officer XXXXXX was a police officer for 20 years. He worked as a patrol officer and a detective, and in a variety of other assignments. He has no other professional or specialized vocational training. Officer XXXXXX believes he is qualified to perform many other jobs within the Police Department (e.g., investigator, lab technician, firearms instructor, or dispatcher) and that he should be able to remain in some capacity. His salary as a police officer was $37,000 when he retired on disability. His disability pension is $14,800. In addition, his health insurance is no longer paid by the City. During his final months on the police force, from XXXXXXXX XXXX until XXXXXXXXXX, Officer XXXXXX made several requests to be permanently placed in a related position that did not require the ability to make a forcible arrest. These transfer or reassignment requests were requests for a reasonable accommodation for his disability. Because Police Department policies preclude reassignment or transfer, XXXXXXXXXX was terminated in XXXXX XXXX, on the grounds that he did not recover sufficiently to resume his duties as a patrol officer, and was directed to apply for disability retirement. Officer XXXXXX alleges that the City's failure to reassign or transfer him to another position within the Police Department constituted a denial of a reasonable accommodation and discrimination against him on the basis of disability. He alleges that the City had ample opportunity to make a reasonable accommodation through reassignment or transfer, but refused to do so, in violation of his rights under Title II. He seeks reinstatement to a position that is equivalent in terms of salary, benefits and seniority. THE CITY'S POSITION The Denver Police Department's policy permits a police
officer 365 days at full salary to recover from a line-of-duty injury. Officers who are expected to be off duty for more than 30 days are assigned to the "limited duty section" where they perform clerical assignments; however, permanent reassignments to so-called "light duty" positions are not available. If injured officers who are temporarily reassigned because of injury do not reach "maximum medical improvement" within one year, and they are deemed unable to return to full time duty, they are removed from the payroll and can apply for a disability retirement. Transfer or reassignment to a non-police officer position within the Police Department, the Department of Safety, or elsewhere in the City and County government is not an option. The City maintains that a transfer to a non-police officer position is unreasonable, is not an accommodation required by the ADA, and is a violation of the Denver City Charter, which mandates two separate and distinct personnel systems. The City of Denver has two legally separate employment systems within the Department of Safety. The Classified Service consists of all police and fire officers and is administered by the Civil Service Commission. The Career Service consists of all other City employees, except members of the Classified Service, and is administered by the Career Service Authority. The Manager of Safety is responsible for all public safety employees in the City of Denver, in both the police and fire departments, including classified and career employees. Police officers, as part of the Classified Service, are classified as "Patrol Officers"; only their rank or assignment differs (e.g., detective, firearms instructor, Sergeant, etc.). The positions, such as lab technician and dispatcher, that are supervised by the Manager of Safety are within the Career Service, which is the civilian segment of the police workforce. Career Service employees perform duties designated by the Manager of Safety through the Chief of Police, and work under the direct supervision of police managers and alongside police officers in support roles. Because of personnel and budget considerations, the Police Department does not provide permanent inside, or "light duty," positions for anyone. The City believes that if it created a permanent light duty position, this would change the essential functions of the Patrol Officer's position. Police officers performing in any capacity are expected to perform the essential functions of their job, which include the ability to fire a
weapon and make a forcible arrest, if necessary. All police officers are theoretically on duty 24 hours a day, carry a badge and weapon, and may be required to act in their law enforcement capacity at any time. If an injured officer is unable to resume "full duty" within 365 days (i.e., be able to make a forcible arrest and fire a weapon), he or she is removed from the force and can apply for disability retirement. The City considers such officers no longer "qualified" to perform the essential functions of their job. Reassignment to positions in the Career Service of the Department of Safety (e.g., dispatcher or lab technician) is not an option. According to the City, the Career Service is an entirely different personnel system, in which the positions have their own unique experience requirements and qualification standards. The City contends that the Police Department has no authority over the Career Service. In summing up its position, the City states: ... the City's interpretation of the ADA requirements regarding accommodations is that the accommodation (a transfer) should be related to the job of a police person, not an entirely different job. More specifically, our interpretation of the ADA requirement is that the accommodation would be to his physical limitation (back problem), and for XXXXXX to be a 'qualified' individual of [sic] a disability he should be capable of performing the essential functions of the job of police person with an accommodation, to that disability. Here, XXXXXX seeks to be accommodated into a non-police position without meeting the qualification standards, test requirements and other selection criteria for a Career Service position. ... our position is grounded in a good faith belief that the transfer requested is unreasonable and not an accommodation compelled by the ADA... ANALYSIS Under Title II of the ADA, which adopts the legal standards of Title I, reassignment to a vacant position is a right of qualified individuals with disabilities, and is permitted as a form of reasonable accommodation. 29 CFR Part 1630.2(o). The legislative history of Title I explains the intent of this aspect
of the ADA. The Senate Report states: "If an employee, because of disability, can no longer perform the essential functions of the job that he or she has held, a transfer to another job for which the person is qualified may prevent the employee from being out of work and the employer from losing a valuable worker." S. Rep. No. 101-116, 101 Cong., 1st Sess. 129-130 (1989). Consideration of reassignment is only required for persons who are already employees, and to the extent possible, employers should reassign individuals to equivalent positions in terms of pay and benefits. The City asserts that one of the essential functions of a patrol officer's job is the ability to make a forcible arrest, and that its only obligation is to accommodate XXXXXXXXXX in police positions that require the ability to make a forcible arrest. The complainant concedes that he is unable to make a forcible arrest because of the seriousness of the damage to his spinal disks. However, the fact that the complainant may not meet the essential functions of a patrol officer's job does not mean that the City's obligations under the ADA have been met. The statutory obligation to "reassign" would have no meaning if it only applied to those individuals who meet the essential functions of the job they were occupying. Indeed, if they could meet the essential functions of that job, they would have no need to be accommodated by being reassigned. In other words, the concept of "reassignment" as interpreted by the City has no meaning. The statute and regulations make clear that when an accommodation in an employee's present position is not possible, reassignment to another position must be considered as a reasonable accommodation. Reassignment assumes that an essential function (such as the ability to make a forcible arrest) cannot be met. Despite the City's contention that it is impossible to consider reassignment of police officers with disabilities to support positions, inter alia, within the department, the City has not adequately explained its reasoning. The Manager of Safety, who in fact has direct administrative control over all employees in the Police Department, has stated in interviews with DOJ personnel and others in the City that she has given thought to arranging for transfers, reassignments or alternative placements for officers with disabilities, like XXXXXXXXXX. Officer XXXXXXXX 20 years of experience in police work, in which
he performed a variety of duties including detective, firearms instructor, dispatcher and other support services, demonstrates that he is apparently qualified for a number of positions in the Police Department. The duty to reassign extends to other related positions in the City for which the complainant is qualified and that were vacant at the time it was determined that he would not be able to return to full duty as a patrol officer. 29 CFR 1630.2(o). How far beyond the employee's immediate job classification ("patrol officer") the employer must look to meet its obligation to reassign is a case-by-case decision, taking into consideration the totality of circumstances, including the employer's size, structure, general policies and procedures, and the frequency and location of available positions. In this case there were, in fact, many vacancies in the Police Department that were available during the period when Officer XXXXXX was on "light duty" for which he could have been considered, given his years of police experience and training. The Police Department listed 221 positions that were filled between January 1992 and March 1993; an additional 13 positions were filled through transfers. XXX XXXXXX could have been considered for positions such as Emergency Service Dispatcher, Code Investigator, Staff Probation Officer, Criminal Justice Technician, Senior Clerk and Specialty Clerk, among others. As a further example, the data show that in every month from XXXXXXXXXX, when the complainant filed his charge, through XXXXXXXXXXXXX, one or more Emergency Service Dispatcher positions were vacant and available for reassignment. Generally speaking, reassignment should be made to a position equivalent to the one presently held in terms of pay and job status, if the individual is qualified for the position and the position is vacant or will be vacant. Officer XXXXXX appeared at that time to possess the requisite skills and experience to work as a "Dispatcher" and identified this as an appropriate transfer or reassignment. Officer XXXXXXXX salary as a patrol officer, approximately $37,000 per year, exceeded the salary of Emergency Service Dispatcher (a maximum of $2,551 per month, or $30,612 per year). While such a reassignment would not result in entirely equivalent pay and benefits, it would not be the obligation of the City to make up the difference between this position and Officer XXXXXXXX position of patrol officer, if it appears that this is the most closely equivalent vacant position to which Officer Davoll could have been reassigned. If there were other positions available,
the Police Department should have also considered them as options. CONCLUSIONS Based on the information provided by the City, the Department of Justice concludes that the City's failure to consider a reassignment or transfer option for police officers with disabilities to other positions with the City constitutes a violation of the ADA and the implementing Title II regulation at 28 CFR 35.140(b). The current policies and procedures implemented by the City as regards officers with disabilities who are no longer able to carry out a forcible arrest discriminate against the complainant and others similarly situated, in violation of Title II. In addition, the City's failure to reassign Officer XXXXXX as a reasonable accommodation for his disability and its termination of him based on his disability constitute violations of Title II. In order to resolve this case, it will be necessary to enter into a formal written voluntary compliance agreement that will provide appropriate remedies for the complainant and others similarly situated, and ensure that the City's policies and practices conform to the requirements of the ADA. Accordingly, the Department hereby offers the City an opportunity to negotiate a voluntary compliance agreement, as provided in 28 CFR 35.173. The Department is open to discussing the violations cited in this letter and remedies that could lead to a satisfactory resolution. In that regard, Thomas Esbrook, the investigator assigned to this case, will contact Mr. J. Wallace Wortham, Assistant City Attorney, within 15 days to determine whether the City is interested in entering into voluntary compliance negotiations. Please be advised that if you choose not to enter into good faith negotiations within 15 days, or if negotiations are unsuccessful, we will refer this matter to our litigating unit for appropriate action. If you or your staff have any questions or need further information, please contact Mr. Esbrook at (202) 307-2940. Sincerely,
Merrily A. Friedlander Acting Chief
Coordination and Review Section Civil Rights Division ccs: XXXXXXXXXXXXXX David C. Feola, Esq. Elizabeth H. McCann, Manager of Safety David L. Michaud, Chief of Police J. Wallace Wortham, Jr., Assistant City Attorney
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