IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CIVIL ACTION NO. 93-K-2263

JACK L. DAVOLL; DEBORAH A. CLAIR; )

and PAUL L. ESCOBEDO; on behalf of )

themselves and a class of persons )

similarly situated; )

)

Plaintiffs, )

)

v\. )

)

WELLINGTON WEBB, in his capacity )

as the Mayor of the City and )

County of Denver; THE CITY AND )

COUNTY OF DENVER; DAVID L. MICHAUD, )

in his capacity as the Chief of )

the Denver Police Department; )

ELIZABETH H. McCANN, in her )

capacity as the Manager of Safety )

for the City and County of Denver; )

and THE CIVIL SERVICE COMMISSION, )

for the City and County of Denver; )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

UNITED STATES\' MEMORANDUM AS AMICUS CURIAE

OPPOSING DEFENDANTS\' MOTION FOR SUMMARY JUDGMENT

**I. [INTRODUCTION]{.underline}**

Plaintiffs Jack L. Davoll, Deborah A. Clair and Paul L. Escobedo are
former police officers with the Denver Police Department (\"DPD\") who
were forced to retire from their positions when each became disabled.
They were forced to retire on disability because the DPD denied their
requests for reassignment to vacant positions located within the DPD or
elsewhere in the City and County Government. Thereafter, plaintiffs
brought this action alleging that defendants\'[^1] policy of refusing to
reassign disabled police officers violates the reasonable accommodation
provision of the Americans with Disabilities Act of 1990 (\"ADA\"), 42
U.S.C. §§ 12111 [et]{.underline} [seq]{.underline}.[^2] Plaintiffs rely
on a key ADA provision which states that \"reasonable accommodation\"
may include \"reassignment to a vacant position.\" 42 U.S.C. §
12111(9)(B).

Defendants have filed a motion for summary judgment arguing, [inter
alia]{.underline}, that the reassignment sought by plaintiffs is not a
reasonable accommodation under the ADA.[^3] First, defendants claim that
plaintiffs are ineligible for reassignment because they are \"not
qualified individuals with disabilities.\" Second, they contend that
even if the plaintiffs were so qualified, the City of Denver\'s Charter
bars the transfer or reassignment of police

officers to non-police officer or civilian vacancies. Defendants\'
Opening Brief in Support of Motion for Summary Judgment (\"Defs.\'
Brief\") at 11.

As we discuss below, defendants\' argument misconstrues the \"reasonable
accommodation\" provision of the ADA and, in particular, the
\"reassignment\" requirement. Accordingly, the United States urges this
Court to deny defendants\' motion for summary judgment on this basis.

**[II.]{.underline} [THE ADA REQUIRES REASSIGNMENT AS A REASONABLE
ACCOMMODATION]{.underline} [FOR EMPLOYEES WITH
DISABILITIES]{.underline}**

> **A. Disabled Police Officers with Disabilities Are Entitled To Be
> Considered For Any Vacancy For Which They Are Qualified**

To establish a [prima]{.underline} [facie]{.underline} case of
discrimination under the ADA, a plaintiff must show that he or she: (1)
is a person with a disability as defined by the ADA; (2) is qualified
for the position and can perform the essential functions of the position
with or without reasonable accommodation; and (3) was denied the
position. [See]{.underline} [White v. York Int\'l. Corp.]{.underline},
45 F.3d 357, 360-61 (10th Cir. 1995); [Hogue v. MQS Inspection,
Inc.]{.underline}, 875 F. Supp. 714, 720 (D. Colo. 1995);
[cf.]{.underline} [Mason v. Frank]{.underline}, 32 F.3d 315, 318-19 (8th
Cir. 1994) (same under the Rehabilitation Act[^4]). Failure to make a
reasonable accommodation such as reassignment to a vacant position
violates the ADA unless the accommodation in question would impose an
undue hardship on the employer or pose a direct threat to the health and
safety of others.[^5] 42 U.S.C. §§ 12112(b)(5)(A) and 12111(9)(B). The
facts show that neither is the case here.

On January 29, 1991, plaintiff Jack L. Davoll\'s[^6] police car was
struck broadside during a high speed chase. Davoll sustained injuries to
his neck, back and shoulder. On May 20, 1992, Davoll returned to work
but was restricted, permanently, from any \"involvement in resistive
activities or altercations.\" Defs.\' Brief, Exhibit A: Affidavit of
James E. McKinley, M.D. According to the defendants, those restrictions
\"precluded\" Davoll from \"active service\" as a police officer in the
DPD. Defs.\' Brief at 3.

Defendants acknowledge that Davoll is an individual with a disability as
defined by the ADA. [See]{.underline} Appendix 2, Specific Facts in
Support of United States\' Memorandum as [Amicus]{.underline}
[Curiae]{.underline} in Opposition to Defendants\' Motion for Summary
Judgment (\"Specific Fact\") No. 1. Nonetheless they consistently
rejected Davoll\'s requests for reassignment into a vacant position for
which he was

qualified. Eventually, recognizing the futility of his efforts, Davoll
applied for and was granted a disability retirement on June 23, 1993.
Defs.\' Brief at 3.

Defendants insist their actions are justified because Davoll\'s
restrictions barred him from firing a weapon and making forcible
arrests, two essential functions of a DPD police officer. Defs.\' Brief
at 9. According to the defendants, an officer who cannot perform these
two functions poses a direct threat to the health and safety of others.
42 U.S.C. § 12111(3); 29 C.F.R. § 1630.2(r); [see]{.underline}
[supra]{.underline} note 4. Accordingly, defendants assume that they are
relieved of all obligations to provide a reasonable accommodation to
Davoll even if he can show he is qualified for a civilian vacancy in the
DPD. Defs.\' Brief at 10-11. This interpretation of the ADA reflects a
fundamental misunderstanding of the statute and regulations.

The ADA defines illegal discrimination to include the failure to make
reasonable accommodations 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). In its definition of reasonable accommodation, the ADA
specifically includes \"reassignment to a vacant position\" and
\"modifications of \... policies.\" 42 U.S.C. § 12111(9)(B).
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. pt. 1630, app. at
400.

In enacting the ADA, Congress declared a clear national commitment to
emancipate disabled workers and, as one of its framers explained, \"to
ensure that persons with disabilities are treated as individuals and
that the employment decisions are not made on the basis of
stereotypes.\"[^7] Reasonable accommodation is one \"process in which
barriers to a particular individual\'s employment opportunity are
removed.\"[^8] Reassignment is one means of allowing disabled workers to
reach the same level of achievement as a non-disabled person with
comparable ability.

Indeed, courts have 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.\'\" [Vande Zande v. Wisconsin Dep\'t of
Admin.]{.underline}, 851 F. Supp. 353, 361 (W.D. Wis. 1994) (quoting
[Guice-Mills v. Derwinski]{.underline}, 967 F.2d 794, 798 (2d Cir.
1992)); [see]{.underline} [Benson v. Northwest Airlines]{.underline}, 62
F.3d 1108, 1114 (8th. Cir. 1995) (reassignment to a vacant position is
possible accommodation), [Hogue v. MQS Inspection, Inc.]{.underline},
875 F. Supp. 714, 721 (D. Colo. 1995) (recognizing reassignment as
reasonable accommodation); [Champ v. Baltimore County]{.underline}, 884
F. Supp. 991, 998 (D. Md. 1995) (same).[^9]

The initial burden of showing that accommodation by reassignment is
possible rests on the plaintiff. [See]{.underline}, [e.g.]{.underline},
[Milton v. Scrivner]{.underline}, 53 F.3d 1118 (10th Cir. 1995)
(transfer to other jobs not required as reasonable accommodation where
plaintiff \"vaguely alludes\" to possible jobs, but provides no
description of jobs that would accommodate his disability); [Lawrence v.
IBP, Inc.]{.underline}, No. 94-2027-EEO, 1995 WL 261144 (D. Kan. April
21, 1995) (plaintiff must present competent evidence that she is
qualified for other available jobs). Here, the facts disclose that
during the period Davoll was seeking a reassignment to an alternate
position, there were dozens of vacancies within DPD\'s Classified
Service (police and fire personnel system) as well within its Career
Service (civilian employee personnel system). Appendix 2, Specific Fact
Nos. 2, 3.

Between January 1992 and March 1993, Davoll could have been considered
for at least 104 Career Service identifiable vacancies. These vacancies,
which do not require the carrying of firearms or making forcible
arrests, include: emergency service dispatcher, code investigator, staff
probation officer, criminal justice technician, senior clerk and
specialty clerk, investigator, lab technician, firearm's instructor, or
dispatcher. Appendix 2, Specific Facts Nos. 3, 5.[^10] Defendants
further admit that the \"knowledge and experience and training \[of\]
police officers would provide a good background for anyone applying for
a Career Service Authority \[[i]{.underline}.[e]{.underline}.,
civilian\] position within the police department.\" [Id]{.underline}.
No. 4. Thus, and not surprisingly, defendants do not and cannot deny
that specific vacancies existed for which Davoll could have been
reassigned given his experience and training in the DPD.
[Id]{.underline}. Nos. 6, 7.

Instead, defendants argue that plaintiffs\' disabilities prevented them
from performing the essential functions of the job for which they were
originally hired (rather than focusing on the jobs to which they seek
reassignment). Defendants reason that plaintiffs are not \"qualified
individuals with disabilities\" and therefore not eligible for
reasonable accommodation. Defendants offer nothing more than a
tautology: in order to be considered a \"qualified individual with a
disability\" eligible for a reassignment, employees must be able to
perform the essential functions of the job for which they were
originally hired. But, of course, if they could do so, there would be no
need to accommodate them by reassignment. Defendants\' interpretation
would render the ADA\'s \"reassignment-as-reasonable accommodation\"
requirement nonsensical.[^11]

> **B.** **The ADA** **Requires Defendants To Make Reasonable Changes In
> Their Regular Reassignment Policies, Practices And Procedures In Order
> To Provide Equal Opportunities** **To A Qualified Individual With A
> Disability**

Defendants also insist that the ADA imposes no duty to reassign Davoll
to a civilian position absent a similar policy for non-disabled
employees. Defs.\' Brief at 11. Defendants err. The ADA\'s unambiguous
legislative history indicates the opposite is true. Committee reports
describing the final legislation chronicle Congress\'s steadfast intent
to remove barriers confronting the disabled worker:

> [Reasonable accommodation may also include reassignment to a vacant
> position]{.underline}. 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]{.underline} [in]{.underline} 1990 U.S.C.C.A.N. 303, 305
(emphasis added).

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. [Beck v.
University of Wisc. Bd. of Regents]{.underline}, No. 95-2479 1996 WL
29449, at \*3 (7th Cir. Jan. 26, 1996) (quoting [Vande Zande v.
Wisconsin Dep\'t of Admin.]{.underline}, 44 F.3d, 538, 543 (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.\'\").

Reassignment as a means of reasonable accommodation is more than making
the usual opportunities available on a nondiscriminatory basis; it
requires a [change]{.underline} in the usual policy where doing so is
\"reasonable.\" [Leslie v. St. Vincent New Hope, Inc.]{.underline}, No.
IP 94-0922-C H/G 1996 WL 69550 (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). If a
policy of reassignment was already in place, an employer would have no
need to make an \"accommodation\" for employees with disabilities; they
could simply seek out the reassignment opportunities available to all
employees. [Haysman v. Food Lion Inc.]{.underline}, 893 F. Supp. 1092,
1104 (S.D. Ga. 1995) (\"reassignment is appropriate when no
accommodation would enable the plaintiff to remain in his current
position, he is qualified (with or without reasonable accommodation) for
another position, and that position is vacant within a reasonable
time.\").[^12]

Citing [Daugherty v. City of El Paso]{.underline}, 56 F.3d 695 (5th Cir.
1995), defendants argue that the ADA does not obligate them to give
\"priority\" to disabled individuals over those who are not disabled.
Defs.\' Brief at 12. Defendants\' reliance on [Daugherty]{.underline} is
misplaced. The plaintiff in [Daugherty]{.underline} was seeking
something more than the typical reassignment required by the ADA. After
he was diagnosed as an insulin-using diabetic, Daugherty, a part-time
employee, demanded as reasonable accommodation a promotion to a
full-time job. Unlike the situation here, Daugherty sought reassignment
to a higher status vacancy.

Under the ADA, an employer has no duty to [promote]{.underline} a
disabled employee as a reasonable accommodation. [White v. York Int\'l
Corp.]{.underline}, 45 F.3d 357, 362 (10th Cir. 1995) (the employer is
not required to promote an employee as a form of accommodation);
[accord]{.underline} [Leslie v. St. Vincent New Hope, Inc.]{.underline},
No. IP 94-0922-C H/G 1996 WL 69550 (S.D. Ind. Feb. 7, 1996). All that
the ADA mandates is that the reassignment be to \"an equivalent
position, in terms of pay, status, etc.\" if the individual is
qualified, and if the position is vacant. Indeed, an employer may
reassign an individual to a lower graded job if no equivalent job is
available.[^13] 29 C.F.R. pt. 1630, app. at 400-02.

Defendants insist that their refusal to reassign Davoll is based on
sound policy. Were Davoll reassigned to a police officer vacancy, they
contend, he would pose a direct threat to the health and safety of
others. But they offer no similar justification for refusing to reassign
Davoll to a civilian vacancy. Defendants have not attempted to (because
they cannot) raise an \"undue hardship\" defense for this decision. 42
U.S.C. § 12111 (10)(A).[^14] For instance, in his deposition, Police
Chief Michaud testified that reassigning police officers with
disabilities like Davoll to Career Service vacancies would not pose an
undue hardship:

> Q: Okay. Now, is it your belief that the second option, reassignment
> or transfer of disabled officers to Career Service Authority
> positions, would be an undue burden on the police department?
>
> A: It would not be an undue burden on the police department if I think
> the laws or rules were changed.

[See]{.underline} Appendix 2, Specific Fact No. 8.

The \"laws or rules\" to which Chief Michaud was referring are found in
the City of Denver Charter. Their Charter, defendants charge, bars
transfers and reassignments between the Classified and the Career
Services. Defs.\' Brief at 12. But defendants have not identified a
specific provision in the Charter which expressly prohibits reassignment
between the two personnel services. Even if such a provision exists,
however, it would be preempted by the ADA\'s explicit directive to
employers to modify existing practices, policies and procedures which do
not conform with the ADA.

Even more important, defendants can and have amended the Charter in the
past. In his deposition, Chief Michaud testified that at least on two
occasions he \"asked\" for and received at least two \"charter
changes.\" Appendix 2, Specific Fact No. 9. Chief Michaud\'s testimony
suggests that revising the Charter is not too burdensome. Therefore,
amending the Charter to allow reassignment between the two personnel
systems would not create an undue hardship.

Further, defendants\' staunch allegiance to their local law ignores the
principle of federal preemption. Where a state or local law is
inconsistent with the operation of a federal statute it is preempted.
The Supremacy Clause of the Constitution, Art. VI, cl. 2, provides that
\"\'the Laws of the United States which shall be made in Pursuance\' of
the Constitution \'shall be the supreme law of the land.\' The phrase
\'law of the United States\' encompasses both federal statutes
themselves and federal regulations that are properly adopted in
accordance with statutory authorization.\" [City of New York v.
FCC]{.underline}, 486 U.S. 57, 63 (1988). Clearly, the ADA preempts the
provisions of the City of Denver\'s Charter at issue here.

The relative importance to the state or local jurisdiction of its own
law is not material \"when there is a conflict with a valid federal law,
for the Framers of our Constitution provided that the federal law must
prevail.\" [Free v. Bland]{.underline}, 369 U.S. 663, 666 (1962). Thus,
any state or local law, however clearly within a jurisdiction\'s
acknowledged power, \"which interferes with or is contrary to federal
law, must yield.\" [Id.]{.underline}; [see]{.underline}
[also]{.underline} [North Dakota]{.underline}

[v. United States]{.underline}, 495 U.S. 423, 434 (1990); [Don\'t Tear
It Down, Inc. v. Pennsylvania Ave. Dev. Corp.]{.underline}, 642 F.2d 527
(D.C. Cir. 1980); [Beveridge v. Lewis]{.underline}, 939 F.2d 859 (9th
Cir. 1991).[^15]

**III. [CONCLUSION]{.underline}**

For the foregoing reasons, the United States requests this Court to
reject the defendants\' argument regarding reassignment as a basis for
its summary judgment motion.

Respectfully submitted,

DEVAL L. PATRICK

> Assistant Attorney General

Civil Rights Division

By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

JOAN A. MAGAGNA

EUGENIA ESCH

SHEILA M. FORAN

Attorneys

United States Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 616-2314

[CERTIFICATE OF SERVICE]{.underline}

I, Eugenia Esch, hereby certify that the foregoing United States\'
Memorandum as [Amicus]{.underline} [Curiae]{.underline} Opposing
Defendants\' Motion for Summary Judgment, was served on February 29,
1996, by U. S. mail, postage pre-paid on the following counsel:

> J. Wallace Wortham, Jr.
>
> Assistant City Attorney
>
> Department of Law
>
> Office of City Attorney
>
> Annex I - 303
>
> 1445 Cleveland Place
>
> Denver, Colorado 80202
>
> (Attorney for the Defendants)
>
> David C. Feola
>
> 315 East Florida Avenue
>
> Denver, Colorado 80210
>
> Marilee E. Langhoff
>
> 6628 South Marion Street
>
> Littleton, Colorado 80121
>
> (Attorneys for the Plaintiffs)

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

EUGENIA ESCH

Attorney

United States Department of Justice

Civil Rights Division

Disability Rights Section

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 514-3816

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CIVIL ACTION NO. 93-K-2263

JACK L. DAVOLL; DEBORAH A. CLAIR; )

and PAUL L. ESCOBEDO; on behalf of )

themselves and a class of persons )

similarly situated; )

)

Plaintiffs, )

)

v\. )

)

WELLINGTON WEBB, in his capacity )

as the Mayor of the City and )

County of Denver; THE CITY AND )

COUNTY OF DENVER; DAVID L. MICHAUD, )

in his capacity as the Chief of )

the Denver Police Department; )

ELIZABETH H. McCANN, in her )

capacity as the Manager of Safety )

for the City and County of Denver; )

and THE CIVIL SERVICE COMMISSION, )

for the City and County of Denver; )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

APPENDICES 1-2 TO PLAINTIFF UNITED STATES\' MEMORANDUM AS

[AMICUS CURIAE OPPOSING DEFENDANTS\' MOTION FOR SUMMARY
JUDGMENT]{.underline}

[APPENDIX 1:]{.underline} Complaint (Civil Action No. 96-K-370), filed

February 15, 1996

[APPENDIX 2:]{.underline} Specific Facts in Support of the United
States\' Memorandum as [Amicus]{.underline} [Curiae]{.underline}
Opposing Defendants\' Motion for Summary Judgment with the following
attachments:

Attachment A: Deposition of Lt. Steven Cooper, dated June 27, 1995

Attachment B: Defendants\' First Response to Interrogatories, Requests
for Production of Documents and Requests for Admission to Defendants,
dated January 18, 1994

Attachment C: Defendants\' Second Amended Response to Interrogatories,
Requests for Production of Documents and Requests for Admission to
Defendants, dated March 28, 1994

Attachment D: Deposition of Chief David L. Michaud, dated October 30,
1995

Attachment E: Defendants\' Amended Response to Interrogatories, Requests
for Production of Documents and Requests for Admission to Defendants,
dated March 2, 1994

Attachment F: Deposition of Jack L. Davoll, dated September 22, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

CIVIL ACTION NO. 93-K-2263

JACK L. DAVOLL; DEBORAH A. CLAIR; )

and PAUL L. ESCOBEDO; on behalf of )

themselves and a class of persons )

similarly situated; )

)

Plaintiffs, )

)

v\. )

)

WELLINGTON WEBB, in his capacity )

as the Mayor of the City and )

County of Denver; THE CITY AND )

COUNTY OF DENVER; DAVID L. MICHAUD, )

in his capacity as the Chief of )

the Denver Police Department; )

ELIZABETH H. McCANN, in her )

capacity as the Manager of Safety )

for the City and County of Denver; )

and THE CIVIL SERVICE COMMISSION, )

for the City and County of Denver; )

)

Defendants. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

SPECIFIC FACTS IN SUPPORT OF THE UNITED STATES\' MEMORANDUM

AS [AMICUS]{.underline} [CURIAE]{.underline} OPPOSING DEFENDANTS\'
MOTION FOR SUMMARY JUDGMENT

Listed below are the specific facts relied on by the United States in
its memorandum opposing defendants\' motion for summary judgment.

1\. Plaintiff Jack L. Davoll (\"Davoll\") is a \"qualified individual
with a disability\" under the ADA. Deposition of Lt. Steven Cooper,
dated June 27, 1995 (Attachment A) at 135\\14-17.

2\. The Denver Police Department (\"DPD\") has employees in both the
Classified Service (sworn police and fire personnel) and in the Career
Service (civilian employee personnel). Defendants\' First Response to
Interrogatories, Requests for Production of Documents and Requests for
Admission to Defendants, dated January 18, 1994 (Attachment B),
Interrogatories Nos. 10, 13, 15.

3\. Between January 1992 and March 1993 at least 104 Career Service
vacancies within the DPD and Department of Public Safety including
emergency service dispatcher, code investigator, staff probation
officer, criminal justice technician, senior clerk and specialty clerk,
investigator, lab technician, firearms instructor, or dispatcher.
Defendants\' Second Amended Response to Interrogatories, Requests for
Production of Documents and Requests for Admission to Defendants, dated
March 28, 1994 (Attachment C), Interrogatory No. 13.

4\. The \"knowledge and experience and training \[of\] police officers
would provide a good background for anyone applying for a Career Service
Authority \[[i]{.underline}.[e]{.underline}. civilian\] position within
the police department.\" Deposition of Chief David L. Michaud, dated
October 30, 1995 (Attachment D) at 177/22-178/2.

5\. The Career Service positions in the DPD do not require the carrying
of firearms or making forcible arrests. Defendants\' Amended Response to
Interrogatories, Requests for Production of Documents and Requests for
Admission to Defendants, dated March 2, 1994 (Attachment E),
Interrogatory No. 8.

6\. Defendants do not dispute Davoll was able to perform the essential
functions of the 104 vacancies between January 1992 and March 1993.
Attachment B, Interrogatory No. 14.

7\. As a DPD police Officer, Davoll acquired training and experience in
both the Classified Service and the Career Service. Deposition of Jack
L. Davoll, dated September 22, 1995 (Attachment F) at 89/10-25.

8\. The Defendants admit that reassigning disabled police officers, like
Davoll, to a Career Service vacancy would not pose an undue hardship.
Attachment D at 129/13-19.

9\. At least two of Chief David L. Michaud\'s requests to amend the City
of Denver Charter were successful. Attachment D at 60/10-24.

[^1]: ^?^ Defendants are Wellington Webb, in his capacity as the Mayor
    of the City and County of Denver; the City and County of Denver;
    David L. Michaud, in his capacity as the Chief of the Denver Police
    Department; Elizabeth H. McCann, in her capacity as the Manager of
    Safety for the City and County of Denver; and the Civil Service
    Commission, for the City and County of Denver. They are referred to
    throughout as \"defendants.\"

[^2]: ^?^ Title I of the ADA prohibits employment discrimination on the
    basis of disability by public and private employers alike. 42 U.S.C.
    § 12111 [et]{.underline} [seq]{.underline}. Title II prohibits
    discrimination on the basis of disability in all services, programs
    or activities of state and local governmental entities. 42 U.S.C. §
    12131 [et]{.underline} [seq]{.underline}. Thus, while title II also
    prohibits employment discrimination, title II regulations adopt
    title I standards for review of employment claims against public
    entities such as the defendants. 28 C.F.R. § 35.140. Accordingly,
    citations hereafter are to title I and the title I regulations
    promulgated by the Equal Employment Opportunity Commission
    (\"EEOC\") at 29 C.F.R. § 1630 [et]{.underline} [seq]{.underline}.

[^3]: ^?^ Defendants raise a number of issues in their motion. The
    United States addresses only defendants\' arguments regarding
    whether reasonable accommodation includes reassignment into a vacant
    position.

[^4]: ^?^ 29 U.S.C. §§ 791, 793, 794 (1988).

[^5]: ^?^ An employer may shield itself from liability by raising the
    \"direct threat\" defense, defined as \"a significant risk of
    substantial harm to the health or safety of the individual or others
    that cannot be eliminated or reduced by reasonable accommodation.\"
    29 C.F.R. § 1630.2(r). To prevail, the employer must show that it
    considered reasonable accommodations to reduce or eliminate such
    risk and that the qualification standards used to assess that risk
    are job-related and consistent with business necessity. 42 U.S.C. §
    12111(3).

[^6]: ^?^ The United States investigated and found merit in plaintiff
    Davoll\'s allegations. [See]{.underline} Appendix 1, complaint (C.A.
    No. 96-K-370) filed by the United States on February 15, 1996. We
    have not yet had the opportunity to assess fully the claims of the
    remaining two plaintiffs and, therefore, this memorandum is focused
    on facts surrounding plaintiff Davoll\'s claims.

[^7]: ^?^ 126 Cong. Rec. S10798 (daily ed. Sept. 7, 1989) (statement of
    Sen. Simon); [see also]{.underline} 29 C.F.R. pt. 1630, at 393-94
    (\"The ADA is a federal anti-discrimination statute designed to
    remove barriers which prevent qualified individuals with
    disabilities from enjoying the same employment opportunities that
    are available to persons without disabilities.\").

[^8]: ^?^ S. Rep. No. 116, 101st Cong., 1st. Sess. 34 (1989).

[^9]: ^?^ Under the Rehabilitation Act some courts had determined that
    \"reasonable accommodation\" did not include reassignment.
    [See]{.underline} [Carter v. Tisch]{.underline}, 822 F.2d 465, 467
    (4th Cir. 1987) (employer need only accommodate the employee in his
    current job, [Jaseny v. U.S. Postal Serv.]{.underline}, 755 F.2d
    1244, 1252 (6th Cir. 1985) (reassignment not required if it would
    usurp the rights of other employees in a collective bargaining
    agreement); [Daubert v. U.S. Postal Serv.]{.underline}, 733 F.2d
    1367, 1368 (N.D. Tex. 1984) (same).

    As one commentator notes, \"\[i\]n enacting the ADA, Congress
    evidenced its intent to reverse this line of cases.\" Arlene B.
    Mayerson, [American with Disabilities Act Annotated: Legislative
    History, Regulations & Commentary]{.underline}, vol. 1, Title I:
    Employment at 66. That congressional intent is made plain by the
    explicit inclusion of \"reassignment\" to the list of accommodations
    under the ADA. Congress\' rationale for including reassignment is to
    prevent not only the employee\'s loss of his job, but also the
    employer\'s loss of a valuable worker. S. Rep. No. 116, 101st Cong.,
    1st Sess. 31-32 (1989).

[^10]: ^?^ Defendants\' reliance on [Champ v. Baltimore
    County]{.underline}, 884 F. Supp. 991, 998 (D. Md. 1995) (all police
    officers are required to fire a weapon and make forcible arrests),
    is thus inapposite. Defs.\' Brief at 11. Unlike [Champ]{.underline},
    the DPD has several Career Service or civilian jobs where the
    ability to fire a weapon or make a forcible arrest is not a factor.
    No such equivalent positions were available in [Champ]{.underline}.

[^11]: ^?^ Defendants\' confusion could well have its origins in case
    law under the Rehabilitation Act. Some courts have confused the
    inquiry or even relied on the Rehabilitation Act to interpret the
    ADA\'s reassignment requirement. [See]{.underline}
    [supra]{.underline} note 9. Defendants appear to have committed the
    same errors here.

[^12]: ^?^ To the extent cases interpreting reassignment as outside the
    range of reasonable accommodations contemplated by the
    Rehabilitation Act, such cases are not persuasive authority in
    construing the express duty of reassignment under the ADA.
    [See]{.underline} [Emrick v. Libbey-Owens-Ford Co.]{.underline}, 875
    F. Supp. 393, 396-97 (E.D. Tex. 1995) (cases holding that the
    Rehabilitation Act does not require reassignment are not relevant
    for the purpose of interpreting the ADA).

[^13]: ^?^ To the extent that the [Daugherty]{.underline} court
    suggested that the\
    ADA never requires changes in reassignment policies or procedures,
    we believe it was wrongly decided. We do note that the
    [Daugherty]{.underline} court ratified the provision of the ADA at
    issue here: \"To be sure, under the ADA a reasonable accommodation
    may include \... reassignment to a vacant position.\"
    [Daugherty]{.underline}, 56 F.3d at 698.

[^14]: ^?^ An employer is not required to make a reasonable
    accommodation if such action will result in \"undue hardship,\"
    defined in the statute as \"an action requiring significant
    difficulty or expense.\" 42 U.S.C. § 12112(10) [et]{.underline}
    [seq]{.underline}.

[^15]: ^?^ \"Federal regulations have no less preemptive effect than
    federal statutes\" and the inquiry for them is not so much
    congressional intent, but whether the regulation is within the
    agency\'s delegated statutory authority. [City of New York v.
    FCC]{.underline}, 486 U.S. 57, 63-64 (1988). The EEOC regulations
    regarding reasonable accommodation and reassignment were promulgated

    pursuant to statutory mandate. 29 C.F.R. § 1630. As such they are
    entitled to controlling weight. [Chevron U.S.A. Inc. v. National
    Resources Defense Council, Inc.]{.underline}, 467 U.S. 837, 843
    (1984) (legislative regulations are given controlling weight unless
    they are arbitrary, capricious, or manifestly contrary to the
    statute).