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\' REPLY BRIEF]{.underline}

[TO DEFENDANT\'S OPPOSITION TO]{.underline}

[PLAINTIFF\'S MOTION FOR SUMMARY JUDGMENT]{.underline}

[TABLE OF AUTHORITIES]{.underline}

[Page]{.underline}

[Arsenault]{.underline} v. [Mayor of Taylor]{.underline}, 296 N.W.2d 351
(Mich. App. 1980) \...\...\...\...\...\...\...\... 4 n.8

[Bombrys]{.underline} v. [City of Toledo]{.underline}, 849 F. Supp. 1210
(N.D. Ohio 1993) \...\...\...\...\...\...\...\..... 4

[DiPompo]{.underline} v. [West Point Military Academy]{.underline}, 770
F. Supp. 887 (S.D.N.Y. 1991) \...\...\.... 3 n.5

[E. E. Black, Ltd.]{.underline} v. [Marshall]{.underline}, 497 F. Supp.
1088 (D. Haw. 1980) \...\...\...\...\...\...\...\.... 2

[E.E.O.C.]{.underline} v. [Bartenders Int\'l Union]{.underline}, 369 F.
Supp. 827 (N.D. Cal. 1973) \...\...\...\...\...\... 5

[E.E.O.C.]{.underline} v. [Kimberly-Clark Corp.]{.underline}, 511 F.2d
1352 (6th Cir.),

[cert.]{.underline} [denied]{.underline}, 423 U.S. 994 (1975)
\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
5

[Hamilton]{.underline} v. [General Motors Corp.]{.underline}, 606 F.2d
576 (5th Cir. 1979),

[cert.]{.underline} [denied]{.underline}, 447 U.S. 907,
[reh\'g]{.underline} [denied]{.underline}, 449 U.S. 913 (1980)
\...\...\...\...\...\...\...\...\.... 5 n.9

[Jasany]{.underline} v. [United States Postal Serv.]{.underline}, 755
F.2d 1244 (6th Cir. 1985) \...\...\...\...\...\...\...\... 1

[Little]{.underline} v. [Norris]{.underline}, 787 F.2d 1241 (8th Cir.
1986) \...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
2

[Mollett]{.underline} v. [City of Taylor]{.underline}, 494 N.W.2d 832
(Mich. App. 1992) \...\...\...\...\...\...\...\...\...\... 4 n.8

[Resolution Trust Corp.]{.underline} v. [Southern Union
Co.]{.underline}, 985 F.2d 196 (5th Cir. 1993) \...\...\...\... 1

[Sarsycki]{.underline} v. [United Parcel Service]{.underline}, 862 F.
Supp. 336 (W.D. Okla. 1994) \...\...\...\...\...\... 3 n.4

[Welsh]{.underline} v. [City of Tulsa]{.underline}, 977 F.2d 1415 (10th
Cir. 1992) \...\...\...\...\...\...\...\...\...\...\...\..... 1-2

I.  [DEFENDANT REGARDED HENDERSON AS BEING SUBSTANTIALLY LIMITED IN
    SEEING AND WORKING]{.underline}

Defendant\'s response to Plaintiff\'s uncontested evidence that
Defendant regarded Henderson as being substantially limited in the
activity of seeing is the false after-the-fact claim that testimony of
Defendant\'s designee under Fed. R. Civ. P. 30(b)(6) constitutes the
mere \"opinions\" of that individual. This Rule 30(b)(6) testimony, that
Henderson could not sketch buildings, estimate distances, etc., amounts
to the City\'s contention regarding functions the City believed
Henderson could not perform due to his monocular vision and the reasons
for the City\'s rejection of Henderson\'s application. This is clear
from the deposition notice and was recognized by the deponent and
Defense counsel during the deposition. Plaintiff\'s Notice of Rule
30(b)(6) Deposition (Exhibit 63) at 2; Rule 30(b)(6) Deposition of
Defendant, (Exhibit 64) at 7/25-8/13, 145/21-146/19. Testimony elicited
pursuant to Rule 30(b)(6), by its very nature, binds a party.
[Resolution Trust Corp.]{.underline} v. [Southern Union
Co.]{.underline}, 985 F.2d 196, 197 (5th Cir. 1993).[^1]

Defendant has also offered no evidence to contradict the clear factual
showing that Defendant regarded Henderson as being substantially limited
in working. Defendant neither contests that it regarded Henderson\'s
monocular vision as disqualifying him from all positions in Defendant\'s
Fire Department, nor that any other employer applying the NFPA vision
standards would similarly reject Henderson from any fire fighting
position.

Defendant\'s entire argument on this point rests on misapplication of
case law. The cases cited by Defendant involve persons who were regarded
as being limited in only one narrow activity, as opposed to Henderson,
who was regarded as being unable to do many if not all functions
required of a fire fighter. [See]{.underline} Plaintiff\'s Exhibit 17
Nos. 2, 9, 11. For instance, in [Jasany v. United States Postal
Serv.]{.underline}, the parties agreed that the plaintiff\'s mild
strabismus (cross-eyes) only limited his ability to use one particular
machine in the post office. 755 F.2d 1244, 1250 (6th Cir. 1985).
Similarly, in [Welsh v. City of Tulsa]{.underline}, the Court found that
plaintiff\'s decreased sensation to hot and cold in two fingers only
limited him as a fire fighter in that he might be injured if an ember
burned through his glove. 977 F.2d 1415, 1416 (10th Cir. 1992). There
was no evidence that the employer considered any other aspect of fire
fighting, or any other function common to other jobs, to be compromised.
[Id.]{.underline}

Defendant also misrepresents that [Welsh]{.underline} \"dismissed out of
hand as mere speculation plaintiff\'s contention that if other fire
departments had the same regulations . . . that he would be excluded
from all classes of fire fighting jobs.\" Defendant\'s Response Brief at
4. In that case, the Court held that plaintiff could not presume that
other employers would [misapply]{.underline} a State standard, as
defendant in that case admitted that it had done. [Welsh]{.underline},
977 F.2d at 1416. Defendant also misconstrues the \"unique\" and
\"exceptional\" abilities exception discussed by the Court in [E.E.
Black, Ltd. v. Marshall]{.underline}, where this exception applied only
to a narrow category of jobs, such as NFL running back or concert
pianist. 497 F. Supp. 1088, 1100 (D. Haw. 1980). Defendant\'s claims
that the ability to clean vehicles and sketch buildings are tasks
requiring exceptional visual skills falls far short of these
examples.[^2]

II. [DEFENDANT HAS NOT REFUTED THAT HENDERSON IS QUALIFIED]{.underline}

Defendant does not, and cannot, contest the convincing evidence that
Henderson is qualified under the ADA. Plaintiff\'s Brief at 21-22.
Defendant relies only on its unfounded assertion that Henderson would
pose a direct threat, which is irrelevant to Plaintiff\'s
[prima]{.underline} [facie]{.underline} case. [See]{.underline}
Plaintiff\'s Response Brief at 3-4.

Moreover, Defendant has admitted that it did not perform an
individualized assessment as required by the ADA, because Defendant
admitted that it applies NFPA 1582 to fire fighter applicants, and that
1582 automatically excludes persons with monocular vision, without the
possibility of an individualized assessment. [See]{.underline}
Defendant\'s Brief at 3, 8 & n.15, 27. Where, as here, a defendant
admits that a policy exists and the only issue is whether it violates
federal law, summary judgment is appropriate. [Little]{.underline} v.
[Norris]{.underline}, 787 F.2d 1241, 1243 (8th Cir. 1986). Defendant\'s
claim of \"three months of careful consideration\" by the Pontiac Fire
Civil Service Commission (\"Commission\") is also blatantly false,
because once the City discovered Henderson\'s monocular vision, it
rejected him automatically, without consulting the Commission, Henderson
himself, or his current Fire Chief.[^3]

Defendant\'s attempted distinction of cases which struck down blanket
exclusions like those used by Defendant, calling those cases
inapplicable because their exclusions were \"pursuant to internal
policies,\" is inapposite.[^4] None of these decisions stress the source
of the exclusionary standards; they invalidated them as a matter of law
because they preclude individualized assessment. Moreover, the NFPA
standards on which Defendant\'s argument relies are Defendant\'s
internal policy, voluntarily adopted from guidelines issued by a
national association.

In addition, Defendant\'s claim that it had no obligation to consider
accommodations for Henderson because he did not request them is simply
wrong. The statute clearly requires an employer who believes an
individual poses a direct threat to consider whether any reasonable
accommodations would eliminate or mitigate the perceived threat.
Plaintiff\'s Brief at 32-34. The statute provides no exceptions to this
requirement.[^5]

Similarly, Defendant has failed to cite any authority or analysis for
its claim that Henderson \-- who Defendant admits is not substantially
limited in his ability to work as a fire fighter and whose sight is not
even affected by his monocular vision[^6] \-- can possibly pose a direct
threat, i.e., a significant risk of substantial harm.[^7]

III. [DEFENDANT HAS FAILED TO PROVE THAT THE CITY IS NOT LIABLE FOR THE
     DISCRIMINATORY DECISION]{.underline}

Defendant continues to assert, relying solely on Act 78, that the
Commission and the City are separate legal entities. Neither Act 78 nor
the cited case law supports Defendant\'s arguments that commissions and
their cities are separate legal entities; they hold only that an action
can be maintained against a city by suing its commission. Defendant\'s
Response Brief, Exhibit Q. Indeed, in two of the cases relied upon by
the Defendant and attached as Exhibit Q to its response brief, the named
defendant was the City, and not its commission.[^8] In a case similar to
the instant case, a court in this Circuit found that the City of Toledo
was responsible for the hiring discrimination under the ADA despite the
fact that its civil service commission mandated the rejection of all
police applicants with insulin-dependent diabetes. [Bombrys]{.underline}
v. [City of Toledo]{.underline}, 849 F. Supp. 1210 (N.D. Ohio 1993).

More fundamentally, Defendant totally ignored extensive evidence
demonstrating that, regardless of the provisions of Act 78, the City
made the hiring decision at issue, and the Commission operates as part
of the City. It cannot be contested that the City, without any input
from the Commission, made the decision to reject Henderson and informed
him of this determination, Plaintiff\'s Brief at 4-5, ¶¶ 10-11; that the
City and not the Commission is the employer of fire fighters,
[id.]{.underline} at 27-28; and that the City is liable for any
discrimination committed through its hiring process. [Id.]{.underline}
at 28-29. Similarly, Defendant did not contest (and it is therefore an
established fact) that the City\'s Law Department, required by the City
Charter to provide counsel only to \"the City and its Departments,\"
provided legal counsel to the Commission, both on the Henderson
application and other employment issues. Plaintiff\'s Brief at 24.

IV. [OTHER DEFENSES DO NOT SHIELD DEFENDANT FROM LIABILITY]{.underline}

Defendant\'s suggestion that Plaintiff has \"conceded\" defenses 1, 3,
4, 6, and 11 is absurd. To the extent that they are defenses at all,
they are subsumed in the issues of disability, qualified, and direct
threat, and Plaintiff has established that summary judgment on these
issues should be granted in favor of Plaintiff. [See]{.underline}
[generally]{.underline} Plaintiff\'s Brief at 11-40.

Defendant has also failed to refute Plaintiff\'s argument that the
statute of limitations and administrative failure defenses should be
dismissed. Defendant previously admitted that it had no facts to support
these defenses; no new facts have arisen since those admissions.
[See]{.underline} Plaintiff\'s Brief at 37. In addition, Defendant
confuses statutes of limitations with administrative timing
requirements, and then misstates the administrative requirements of
Title VII and the ADA. The ADA contains no statute of limitations, but
includes administrative timing requirements regarding the filing of
charges of discrimination. Under those requirements, Henderson was
required to file a charge of discrimination within 300 days (because
Michigan allows for the referral of charges to a state civil rights
commission) from the date he was notified of the rejection, which was
August 3, 1992. Plaintiff\'s Brief at 4, ¶ 10. Undisputed facts
establish that all these administrative timing requirements were met in
this case. [See]{.underline} Plaintiff\'s Brief at 37-38.

Defendant alleges that the EEOC must investigate, make a determination,
attempt to conciliate, and refer all charges to the Department of
Justice within 30 days of the filing of the charge. Defendant\'s
Response at 12-14. This argument is patently false.
[E.E.O.C.]{.underline} v. [Bartenders Int\'l Union]{.underline}, 369 F.
Supp. 827, 828-29 (N.D. Cal. 1973) (\"\[I\]t is frivolous to contend, as
defendant does here that Congress meant in § 706(b) that the
investigation, reasonable cause determination, and conciliation attempts
must be effected within thirty days from the filing of the charge.\").
This Circuit, also many years ago, rejected Defendant\'s arguments.
[E.E.O.C.]{.underline} v. [Kimberly-Clark Corp.]{.underline}, 511 F.2d
1352, 1356 (6th Cir.), [cert.]{.underline} [denied]{.underline}, 423
U.S. 994 (1975).[^9]

Respectfully submitted,

DEVAL L. PATRICK

Assistant Attorney General

Civil Rights Division

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

JOHN L. WODATCH

L. IRENE BOWEN

ALLISON NICHOL

EDWARD MILLER

BEBE NOVICH

Attorneys

Disability Rights Section

Civil Rights Division

U. S. Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 514-3422

[^1]: ^?^Defendant\'s interrogatory responses also show that Defendant
    regarded Henderson as being substantially limited in seeing.
    [See]{.underline} Plaintiff\'s Exhibit 17, Nos. 2, 9, 11.

[^2]: ^?^The NFPA vision standards do not require any exceptional visual
    abilities. Plaintiff\'s Exhibit 16 at 1582-8.

[^3]: ^?^In its Response Brief, Defendant now claims that Henderson was
    rejected on August 5, 1992, instead of August 3, 1992, although
    Defendant had already admitted that the decision not to hire
    Henderson had been made on or before August 3, 1992. Plaintiff\'s
    Exhibit 5 No. 26. This sudden change of position is obviously due to
    Plaintiff\'s discovery, (despite Defendant\'s wrongful withholding
    documents showing this fact), that Henderson was certified by the
    Commission in May 1992 and rejected by the City\'s Personnel
    Department before the Commission was consulted. [See]{.underline}
    Plaintiff\'s Brief at 4-5, ¶¶ 10, 11. Defendant now tries to claim
    that the August 3 letter merely informed Henderson of the City\'s
    finding that he had monocular vision; but the letter also states
    clearly that because of his monocular vision, his \"application
    \[would\] be given no further consideration.\" Plaintiff\'s Exhibit
    20; Plaintiff\'s Brief at 25-26.

[^4]: ^?^This claim is also untrue. [See]{.underline},
    [e.g.]{.underline}, [Sarsycki v. UPS]{.underline}, 862 F. Supp. 336
    (W.D. Okla. 1994) (UPS exclusionary policy was based on national
    regulations).

[^5]: ^?^Defendant\'s citation to [DiPompo v. West Point Military
    Academy]{.underline}, 770 F. Supp. 887 (S.D.N.Y. 1991), actually
    argues against Defendant\'s point. In [DiPompo]{.underline}, the
    defendant and the court carefully considered several accommodations
    which would have enabled plaintiff, a person with dyslexia, to read
    the complex chemical words and symbols, under emergency
    circumstances. The court ultimately found the accommodations to pose
    an undue hardship on defendant. [Id.]{.underline} Defendant has not
    asserted an undue hardship defense in the instant action.

[^6]: ^?^[See]{.underline} Plaintiff\'s Brief at 36.

[^7]: ^?^Defendant also does not, and cannot, refute Plaintiff\'s
    statutory argument that Defendant cannot assert a direct threat
    defense without also asserting and proving an affirmative defense
    that its exclusionary standards are \"job-related and consistent
    with business necessity,\" which Defendant affirmatively withdrew.

[^8]: ^?^[See]{.underline} [Mollett]{.underline} v. [City of
    Taylor]{.underline}, 494 N.W.2d 832 (Mich. App. 1992);
    [Arsenault]{.underline} v. [Mayor of Taylor]{.underline}, 296 N.W.2d
    351 (Mich. App. 1980).

[^9]: ^?^The relevant time period for filing a charge begins from the
    notification of the rejection for employment, not the date of the
    application, as Defendant contends. [Hamilton]{.underline} v.
    [General Motors Corp]{.underline}., 606 F.2d 576, 579 (5th Cir.
    1979), [cert]{.underline} [denied]{.underline}, 447 U.S. 907,
    [reh\'g]{.underline} [denied]{.underline}, 449 U.S. 913 (1980).
    Defendant also attempts to mislead this Court by falsely claiming
    that Plaintiff filed its summary judgment motion late \"without
    permission or excuse.\" [See]{.underline} Defendant\'s Response
    Brief, Exhibit G.