F I L E D

United States Court of Appeals

Tenth Circuit

OCT 25 1999

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JACK L. DAVOLL; DEBORAH A.

CLAIR; PAUL L. ESCOBEDO,

Plaintiffs-Appellants,

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; THE

CIVIL SERVICE COMMISSION, for the

City and County of Denver,

Defendants-Appellees.

JACK L. DAVOLL, DEBORAH A. 

CLAIR, PAUL L. ESCOBEDO,

Plaintiffs-Appellees,

v.

WELLINGTON WEBB, in his capacity as

the Mayor of the City and County of

Denver; DAVID L. MICHAUD, in his

capacity as the Chief of the Denver Police

Department; ELIZABETH H.

No. 97-1381 

No. 97-1406
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MCCANN, in her capacity as the 

Manager of Safety for the City and 

County of Denver; THE CIVIL SERVICE

COMMISSION, for the City and County of

Denver,

Defendants,

and

THE CITY AND COUNTY OF DENVER, 

Defendants-Appellants.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DENVER POLICE DEPARTMENT;

THE CITY AND COUNTY OF 

DENVER,

Defendants-Appellants. Nos. 97-1403

 97-1431

Appeal from the United States District Court

for the District of Colorado

(D.C. Nos. 93-K-2263 and 96-K-370)

David C. Feola, of King Minning Clexton & Feola, LLC, Denver, Colorado (Law

Office of Marilee E. Langhoff, Littleton, Colorado, with him on the brief), for

Plaintiffs-Appellants/Cross-Appellees.
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Sybil Ruth Kisken, Assistant City Attorney (Daniel E. Muse, City Attorney, J.

Wallace Wortham, Jr., Asst. City Attorney Supervisor, Ashley Rea Kilroy, Asst.

City Attorney, and Grace Fell Regan, Asst. City Attorney, with her on the briefs),

of Denver, Colorado, for Defendants-Appellees/Cross-Appellants.

Seth M. Galanter, Attorney, Department of Justice (Jessica Dunsay Silver,

Attorney, Department of Justice, with him on the briefs), Washington, D.C., for

Plaintiff-Appellee, United States of America.

Before SEYMOUR, Chief Judge, BRORBY and HENRY, Circuit Judges.

SEYMOUR, Chief Judge.
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Former Denver police officers Jack Davoll, Deborah Clair, and Paul

Escobedo sued the City and County of Denver, as well as Mayor Wellington

Webb, Police Chief David L. Michaud, and Manager of Safety Elizabeth H.

McCann, in their official capacities, for violating the officers’ rights under Title I

and Title II of the Americans with Disabilities Act (ADA), 104 Stat. 328, 42

U.S.C. §§ 12112, 12132, and the Equal Protection Clause of the Fourteenth

Amendment. About a year and a half later, the United States filed a two-part

complaint against the City and County of Denver, alleging a violation of Title II

of the ADA on behalf of Jack Davoll, and a pattern and practice of discrimination

under Title I of the of ADA.

The district court granted Denver’s motion for summary judgment on the

officers’ equal protection claim, but denied summary judgment based on the

officers’ failure to meet the exhaustion requirements of Title I of the ADA. The

Court expressly declined to decide whether the officers had properly exhausted

their claims under Title I, and instead treated their claims as actions pursuant to

Title II, which contains no exhaustion requirement. The Court consolidated the

United States’ action on behalf of Jack Davoll and the liability phase of the

United States’ pattern and practice claim with the officers’ ADA claims. Prior to

trial, the district court granted summary judgment in favor of the United States on

the liability phase of its pattern and practice suit. The remaining ADA claims
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were tried to a jury, which found in favor of all three officers and awarded

compensatory damages totaling $800,000. The district court also awarded

equitable relief. After the trial, the court certified for immediate appeal its

summary judgment order in favor of the United States on the liability phase of the

pattern and practice suit.

Denver appeals from the trial verdict, contesting jury instructions,

sufficiency of the evidence, evidentiary and discovery rulings, and the remedies

awarded. Denver also contests the grant of summary judgment to the United

States on its pattern and practice claims. The officers (hereinafter plaintiffs)

cross-appeal, contending the district court erred in denying their motion for class

certification, by granting summary judgment for Denver on their equal protection

claim, and by limiting their front pay award to two years from the judgment. We

consolidated the appeals and we now affirm in part, and reverse and remand in

part.

I

BACKGROUND

Mr. Davoll, Ms. Clair, and Mr. Escobedo are all former Denver police

officers who were injured in the line of duty and forced to retire due to Denver’s
1

 In reciting the facts, we view the evidence in the light most favorable to

the plaintiffs and United States because the jury found in their favor. See

Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 988

(10th Cir. 1999). 

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policy forbidding disabled police officers from transferring into other vacant

positions in the city government. We discuss Denver’s policies on reassignment

as well as each plaintiff in turn.1

A. Denver’s Classified and Career Service Systems

The City and County of Denver, which has an overall budget of $1.5

billion, employs approximately 12,000 people. Most of these employees are

enrolled in one of two personnel systems: the Classified Service, which is

composed of police officers and firefighters, or the Career Service, which

contains almost all other city employees. Denver pays the salaries, insurance, and

other benefits of the employees in both systems. Evidence at trial revealed that

although a unified system would be less costly and reduce duplication of efforts,

the division remains primarily because of territorialism and turf wars. Denver

prohibits the reassignment of employees in the Classified Service to the Career

Service and vice-versa, although both systems purport to be merit based.

The Career Service has approximately 8,000 full-time and 1,500 temporary

positions. Each year, it seeks to fill approximately 2,200 vacancies, 1,500 of

which are for full-time employment. The Career Service system was set up by a
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charter which the voters of Denver approved. Its hiring rules provide that

candidates must submit an application and meet the minimum qualifications for a

vacant position. Candidates that do so are then tested. The Career Service

Authority generates an eligibility list as a result of this screening. The hiring

agency interviews those at the top of the list, although it does not know the

candidates’ actual scores or rankings. The agency may hire anyone on this list.

The hiring agency also may hire any one of a number of people not on the

eligibility list. For example, an employee within the Career Service who meets

the minimum qualifications may request an interview from the agency directly

without testing for the position. If the request is granted, that person would be

placed on a transfer list and could be hired. Moreover, if the manager hiring for

the vacancy would like a particular Career Service employee to fill the vacancy

and the employee agrees, the manager could make the transfer without ever

referencing the lists of applicants. There is also a list for those Career Services

employees who meet the qualifications and wish to be promoted to the vacant

position. In this way, Career Service employees bypass the testing procedures for

a vacancy within the Career Service. Classified Service employees are not

permitted to transfer into the Career Service, and must compete with all non-City

employees for any vacancies within the Career Service personnel system.

The Classified Service employs over 1,400 police officers. In order to
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become a police officer, a candidate must pass a written test, a physical abilities

test, a medical test, a polygraph test, a psychological examination, and a

background check, and must have an oral interview. Police officers that are

separated under honorable circumstances may be reemployed without competing

with the general applicant pool. 

According to the city, all police officers must be able to shoot a gun and

make a forcible arrest. If a police officer is injured in the line of duty so that he

cannot perform those required functions, the police department will retain the

officer as long as his condition is improving. Once a doctor determines that the

injured officer has reached “maximum medical improvement,” the officer has 365

days to recover enough to perform the required functions. If he cannot shoot a

gun or make a forcible arrest within that time frame, he must retire. In the

interim period, the police department assigns injured officers to light duty work

that does not involve shooting a gun or making forcible arrests. Approximately

four police officers a year retire due to occupational disabilities.

Not all positions within the Denver Police Department (DPD) require the

ability to shoot a gun or effect a forcible arrest. The DPD has been actively

engaged in a process of “civilianization” whereby positions that were once

performed by emergency service officers, who are by definition Classified Service

employees, are now performed by members of the Career Service. The
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civilianized positions entail the same duties as before but do not require firing a

weapon or making forcible arrests. Positions such as emergency service

dispatcher, criminal justice technician, and victim advocate have been

civilianized. There are approximately 200 Career Service employees in the DPD,

and between twenty-four and thirty-six Career Service vacancies a year within the

DPD. Injured police officers are not reassigned to these positions because these

jobs are now considered a part of the Career, as opposed to Classified, Service.

At trial, Denver asserted that permitting reassignment of injured police

officers to Career Service positions would hurt employee morale. Denver never

studied the cost of such a measure, or attempted to modify the dual service system

to accommodate the disabled plaintiffs. A Denver official admitted that such

reassignment would not impose an undue monetary burden on the city. The jury

found that reassigning plaintiffs from the Classified to Career Service system

would not impose an undue burden on defendants.

B. Jack Davoll

Jack Davoll has spent almost all of his working life in law enforcement and

served as a police officer with the DPD from March 1984 to July 1993. While

working at the DPD, he performed well and received numerous commendations. 

In January 1991, a Jeep Cherokee involved in a high-speed chase struck the patrol

car in which Mr. Davoll was riding. He sustained numerous injuries as a result of
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the accident.

Following the accident, Mr. Davoll participated in physical therapy in an

effort to cure the injuries to his neck, back, and shoulder. The therapy helped him

regain some of his strength but did not rehabilitate him enough to return to his

position as a patrol officer. In fact, as a result of the accident Mr. Davoll suffers

from degenerative disk disease, a permanent condition which causes him severe

back pain. He has difficulty walking distances, especially on uneven terrain,

cannot sit for more than two hours at a time, cannot stand for extended periods of

time, and has difficulty bending or twisting. Dr. Kleen, his treating physician,

testified that Mr. Davoll’s condition is so sensitive he could be paralyzed were he

to get into an altercation. Dr. Kleen therefore restricted him to light to mediumduty jobs.

After the accident, Mr. Davoll worked in various limited-duty positions in

the DPD, such as desk clerk and juvenile intake clerk, and performed well. 

During 1992, Mr. Davoll learned that the DPD would likely try to force his

retirement and he explored options that would allow him to stay employed in

some capacity with the DPD. When Mr. Davoll worked at the juvenile intake

desk, he asked his supervisor if he could remain in that position. His request was

denied. Mr. Davoll also inquired about reassignment into a Career Service

position but was told that was not possible. The DPD forced him to retire
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effective July 1993. 

After his retirement, Mr. Davoll continued to look for employment both in

and outside the city government. He applied for several jobs with the city and was

found qualified for every position for which he tested including senior criminal

investigator, staff probation officer, and code enforcement agent. However, he

was not offered any of those jobs. Mr. Davoll took a job in security surveillance

at a casino and a job at the Adams County jail, but he had to quit both because the

walking caused him too much pain. He eventually found employment as an

emergency dispatcher with Jefferson County Schools.

C. Deborah Clair

Ms. Clair served as a police officer with the DPD from 1980 to April 1992. 

For several years prior to that, she had worked in the reserve force of the police

department, assisting and augmenting the regular force officers in their duties. 

While working for the DPD, Ms. Clair received commendations and good

evaluations for her performance. In March 1982, she was responding to a

domestic violence call when her vehicle was struck broadside by a drunk driver

who had run a stop sign. The impact forced Ms. Clair’s vehicle into a telephone

pole and she sustained numerous injuries.

After the accident, Ms. Clair sought treatment for the injuries to her leg,

back and neck, and did physical therapy for several years. She continued to work
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for the DPD, but her pain worsened throughout the years, especially in her back

and neck. Doctors eventually diagnosed her with degenerative disk disease and in

1991 performed surgery on her back to remedy her condition. Although the

surgery did relieve some of the pain, Ms. Clair did not recover enough to return to

her position as a police officer. Like Mr. Davoll, she risks paralysis if she is

involved in an altercation. She has difficulty sitting, standing, and walking.

The DPD decided to retire Ms. Clair effective April 15, 1992. At that time,

she knew there was a policy prohibiting the transfer of officers with disabilities to

civilian positions, and Sargent George Maes told Ms. Clair that neither the DPD

nor the city administration would help Ms. Clair find another job. Had the

reassignment policy been otherwise, she would have pursued further employment

with the city. Ms. Clair’s years of experience with the DPD qualified her for

numerous City vacancies existing around the time of her retirement, including

Victim Advocate, Senior Criminal/ Civil Investigator, Staff Probation Officer and

Criminal Justice Specialty Clerk. No one at the DPD alerted Ms. Clair to these

openings, and Ms. Clair did not apply for them because she knew of the city’s

policy forbidding reassignment of disabled police officers. Instead, Ms. Clair

moved outside of Denver and took over a horse-drawn carriage company.

D. Paul Escobedo

Mr. Escobedo was employed by the DPD from 1980 to December 1992. 
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During that time, he received numerous commendations and good performance

evaluations. He was also involved in several accidents and altercations in which

he sustained injuries to his elbow, thumb, back, neck, and wrist.

Mr. Escobedo engaged in physical therapy and underwent surgery to

remedy his injuries. While that treatment helped, he did not improve sufficiently

to return to work as a police officer. Specifically, Mr. Escobedo’s thumb injury

was so severe he had to have his right thumb joint surgically fused, thereby

rendering him unable to fire a weapon with that hand. He also suffers from

chronic severe pain in his back and neck which interferes with his ability to sit for

prolonged periods, to sleep, and to lift.

After Mr. Escobedo’s thumb surgery, the DPD placed him in the limited

duty section, where he performed primarily clerical work. During that time, he

inquired about possible job opportunities with the Career Service, but he was told

it would be impossible for him to transfer because the charter prohibited it. He

also raised the issue of the ADA, but was told it “has nothing to do with you.” 

Aplt. App. at 3230. The DPD retired Mr. Escobedo on December 2, 1992. The

next day, he returned to work to perform his limited duty assignment. Sargent

Maes called him soon after he arrived and asked him to leave.

Mr. Escobedo had difficulty finding suitable work after his forced

retirement. He was qualified for several vacancies in the Career Service,
2

 Title II of the ADA provides in pertinent part:

Subject to the provisions of this subchapter, no qualified

individual with a disability shall, by reason of such disabililty, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.

42 U.S.C. § 12132.

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including Emergency Service Dispatcher, Criminal Justice Specialty Clerk, and

Criminal Justice Technician, but the city never informed him of these positions. 

At the time of trial, Mr. Escobedo worked at a senior living center, driving the

residents around and performing light maintenance work.

II.

Before we turn to the merits of this appeal, we must determine whether we

have subject matter jurisdiction over this action insofar as it was brought under

Title II of the ADA. No party raised the issue below or on appeal but, after

briefing, Denver submitted supplemental authority which it claimed questioned

whether federal courts have subject matter jurisdiction over employment actions

brought pursuant to Title II. See Zimmerman v. Oregon Dept. of Justice, 170 F.3d

1169 (9th Cir. 1999) (holding Title II does not extend to employment

discrimination because Title I explicitly covers such action).2

 If the issue
3

 Cases and statutes will on occasion use the term “jurisdiction” loosely

and not simply to designate a case beyond the courts’ purview. See Steel Co., 118

S. Ct. at 1010; Rabine, 161 F.3d at 430. As the Second Circuit noted, the

difference between a question of subject matter jurisdiction and one of failure to

state a claim is “a ‘lesson that has been taught as often in decision as it has been

ignored in argument and dicta.’” Nowak v. Ironworkers Local 6 Pension Fund, 81

F.3d 1182,1188 (2d Cir. 1996) (quoting Fogel v. Chestnutt, 668 F.2d 100, 106 (2d

Cir. 1981)); see also 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 1350, p. 196 (2d ed. 1990). That distinction,

although often ignored, can have significant and even dispositive impact on a

case, and courts should carefully consider whether a dismissal is truly

jurisdictional as defined by Steel Co. v. Citizens for a Better Environment, 118 S.

Ct. 1003 (1998), and Bell v. Hood, 327 U.S. 678 (1946).

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implicates subject matter jurisdiction, we have an obligation to address it

“regardless of normal rules governing the presentation of issues.” International

Union of Operating Eng’rs, Local 150 v. Rabine, 161 F.3d 427, 429 (7th Cir.

1998); see also Steel Co. v. Citizens for a Better Env’t, 118 S. Ct. 1003, 1011

(1998). Consequently, we ordered supplemental briefing on whether the issue of

Title II coverage is one of subject matter jurisdiction and, if so, whether Title II

applies to employment discrimination actions. Because we conclude the question

is not one that implicates our subject matter jurisdiction,3

 and because the issue

was not raised below or on appeal, we do not address whether Title II in fact

covers employment actions. See FDIC v. Noel, 177 F.3d 911, 915 (10th Cir.

1999).

“[T]he absence of a valid (as opposed to arguable) cause of action does not
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implicate subject matter jurisdiction, i.e., the courts’ statutory or constitutional

power to adjudicate the case.” Steel Co., 118 S. Ct. at 1010. “Jurisdiction . . . is

not defeated . . . by the possibility that the averments might fail to state a cause of

action on which petitioners could actually recover.” Bell v. Hood, 327 U.S. 678,

682 (1946). Rather, “where the complaint . . . is so drawn as to seek recovery

directly under the Constitution or the laws of the United States, the federal court,

but for two possible exceptions . . . must entertain the suit.” Id. at 681-82. The

two exceptions come into play “where the alleged claim under the Constitution or

federal statues clearly appears to be immaterial and made solely for the purpose of

obtaining jurisdiction or where such a claim is wholly insubstantial and

frivolous.” Id. at 682-83; see also Cardtoons, L.C. v. Major League Baseball

Players Assoc., 95 F.3d 959, 965 (10th Cir. 1996). If the applicability of the

federal statute upon which a plaintiff relies is genuinely at issue, the federal

courts possess jurisdiction and should reach the merits of the claim. See Steel

Co., 118 S. Ct. at 1010; see also Wheeldin v. Wheeler, 373 U.S. 647, 649 (1963);

Nowak, 81 F.3d at 1188 (quoting 2A JAMES W. MOORE ET AL., MOORE’S FEDERAL

PRACTICE ¶ 12.07 [2.1] at 12-60 (2d ed. 1995)) (“‘[I]f a federal statute upon

which a claim is premised is interpreted to be inapplicable, it could be argued that

the plaintiff has failed to present a federal question and thus subject matter

jurisdiction is absent. However . . . in such instances the preferable practice is to
4

 The Court did not reach the merits of the case, however, because it held

the plaintiffs lacked Article III standing. See Steel Co. v. Citizens for a Better

Environment, 118 S. Ct. 1003, 1020 (1998).

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assume that jurisdiction exists and proceed to determine the merits.”).

The Supreme Court’s decision in Steel Co., 118 S. Ct. 1003, exemplifies

this principle. The Court was concerned there with whether the Emergency

Planning and Community Right-To-Know Act of 1986 (EPCRA), 42 U.S.C. §

11406 (a)(1), authorizes suits for purely past violations. See id. at 1008. The

Court noted that subject matter jurisdiction was proper “if ‘the right of petitioners

to recover under their complaint will be sustained if the Constitution and laws of

the United States are given one construction and will be defeated if they are given

another.’” Id. at 1010 (quoting Bell, 327 U.S. at 685). The Court also observed

that it was neither frivolous nor immaterial to contend that EPCRA applied to past

violations. Id. Because respondent would win if the Court construed EPCRA to

apply to purely past violations, and would lose if it did not apply, and because the

claim was not subject to either of the narrow Bell exceptions, the Court ruled that

the issue did not implicate subject matter jurisdiction.4

A similar analysis leads us to conclude that whether Title II applies to an

employment discrimination action does not raise a jurisdictional question. Here,

plaintiffs’ complaint alleged claims of employment discrimination based on
5

 Plaintiffs also brought their claims under Title I of the ADA. Denver

filed for summary judgment based on plaintiffs’ alleged failed to meet the

exhaustion requirements of Title I. The court expressly declined to decide that

question and instead allowed plaintiffs to proceed on their coextensive Title II

claims. See Davoll v. Webb, 943 F. Supp. 1289, 1297-98 & n.5 (D. Colo. 1996).

6

 Denver relies on Iskander v Rodeo Sanitary Dist., No. C-94 0479-SC,

1995 WL 56578 (N.D. Cal. 1995), a pre-Steel Co. case, to argue that this issue

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disability under Title II of the ADA.5

 As they wrote their complaint to allege a

federal cause of action, we have subject matter jurisdiction unless their

allegations are immaterial or insubstantial. They are neither. 

Title II provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected

to discrimination by any such entity.” 42 U.S.C. § 12132 (emphasis added). 

Whether that provision encompasses employment discrimination is a difficult

question that has split the circuits. Compare Zimmerman, 170 F.3d 1169, with

Bledsoe v. Palm Beach County Soil & Water Conserv. Dist., 133 F.3d 816 (11th

Cir. 1998) (holding that Title II does extend to employment discrimination). 

While we do not pass on that question here, plaintiffs’ claim that Title II covers

employment discrimination is certainly not frivolous or immaterial. Thus, the

federal courts possess subject matter jurisdiction to consider the claim.

Our conclusion is supported by the fact that the many courts addressing the

question have not treated it as one of subject matter jurisdiction.6 Rather, the
does implicate our subject matter jurisdiction. We are not persuaded. First,

Iskander declined jurisdiction over plaintiff’s ADA claim because her employer

did not have the requisite number of employees and not specifically because Title

II did not cover employment actions. See id. at *9. Second, we question its use

of the term “jurisdiction” in light of Steel Co., 118 S. Ct. at 1010. See Sharpe v.

Jefferson Distrib. Co., 148 F.3d 676,677 (7th Cir. 1998), abrogated on other

grounds by Papa v. Katy Indus., Inc., 166 F.3d 937 (7th. Cir. 1999); Saxon v.

Orthodontics, No. 98-2401-JWL, 1999 WL 232913, *1 (D. Kan. 1999). But see

Owens v. Rush, 636 F.2d 283, 287 (10th Cir. 1980).

7

 We recognize that in certain circumstances a 12(b)(1) motion for lack of

subject matter jurisdiction must be converted into a 12(b)(6) motion or a motion

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issue of whether Title II covers employment discrimination has been raised and

considered on motions to dismiss for failure to state a claim, see, e.g.,

Zimmerman, 170 F.3d at 1171; Patterson v. Illinois, 35 F. Supp.2d 1103, 1104

(C.D. Ill. 1999); Alberti v. City & County of San Francisco Sheriff’s Dept., 32 F.

Supp.2d 1164, 1167 (N.D. Cal. 1998), overruled by Zimmerman, 170 F.3d 1169;

Petersen v. University of Wisconsin Bd. of Regents, 818 F. Supp. 1276, 1276-77

(W.D. Wis. 1993); cf. Innovative Health Sys. v. City of White Plains, 117 F.3d 37,

42 (2d Cir. 1997) (whether ADA applied to zoning), or motions for summary

judgment, see, e.g., Bledsoe, 133 F.3d at 818; Downs v. Massachusetts Bay

Transp. Auth., 13 F. Supp.2d. 130, 134 (D. Mass. 1998); Decker v. University of

Houston, 970 F. Supp. 575, 576-77 (S.D. Tex. 1997); Hernandez v. City of

Hartford, 959 F. Supp. 125, 132-33 (D. Conn. 1997); Wagner v. Texas A & M

Univ., 939 F. Supp. 1297, 1308 (S.D. Tex. 1996); cf. Johnson v. City of Saline,

151 F.3d 564, 567, 569 (6th Cir. 1998) (whether Title II applied to contracting).7
for summary judgment. See Tippett v. United States, 108 F.3d 1194, 1196 (10th

Cir. 1997). However, that was not the situation in any of the above-cited cases.

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Because the issue is not jurisdictional and because Denver did not raise it below

or on appeal, we expressly decline to decide whether Title II covers employment

discrimination. Instead, we assume that it does and turn to the issues properly on

appeal.

III.

A. Jury Instructions

Denver asserts that the district court erred in refusing to give two of its

proposed instructions, and that several of the jury instructions given misstated the

law. We review the district court’s decision whether to give a particular

instruction for an abuse of discretion. See Allen v. Minnstar, 97 F.3d 1365, 1368

(10th Cir. 1996). We review de novo “whether, as a whole, the instructions

correctly stated the governing law and provided the jury with an ample

understanding of the issues and applicable standards.” Id. “Instructional error

requires reversal only if the error is determined to have been prejudicial, based on

a review of the record as a whole.” Morrison Knudsen Corp. v. Fireman’s Fund

Ins. Co., 175 F.3d 1221, 1236 (10th Cir. 1999) (internal quotation marks omitted).
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1. “Qualified Individual with a Disability”

Denver contends the district court erred in instructing the jury that

plaintiffs were “qualified individuals with disabilities” under the ADA if they

could perform the essential functions of the positions which they desired rather

than the position which they held. Denver argues that because the three plaintiffs

admitted they could not perform the essential functions of the police officer

position, that is, fire a weapon or effect a forcible arrest, the ADA does not apply

to them.

This court recently addressed this issue in Smith v. Midland Brake Inc., 180

F.3d 1154 (10th Cir. 1999) (en banc). We relied there on the ADA’s statutory

text and legislative history to conclude that “ a ‘qualified individual with a

disability’ includes a disabled employee who desires and can perform with or

without reasonable accommodation an available reassignment job within the

company, though unable to perform his or her existing job.” Id. at 1161. We

noted that nearly every circuit addressing the issue has adopted this interpretation

of “qualified individual with a disability.” See id. at 1162-63 (citing cases).

Here, the district court instructed the jury that a “qualified individual with a

disability” need only be able to perform the essential functions of the job to which

he or she desires to be reassigned, and not of the position which he or she holds. 

Under Smith, this instruction was correct. 
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2. Reassignment as “Reasonable Accommodation”

Denver also contends the district court erred in instructing the jury that the

ADA mandates reassignment as a reasonable accommodation in certain

circumstances. In essence, Denver’s position is that reassignment is always

optional for an employer and therefore a failure to reassign cannot serve as a

basis for liability. We addressed this issue in Smith as well. 

We held in Smith that “reassignment of an employee to a vacant position in

a company is one of the range of reasonable accommodations which must be

considered and, if appropriate, offered if the employee is unable to perform his or

her existing job.” Id. at 167 (emphasis added). We recognized that reassignment

may not always be an appropriate form of reasonable accommodation. For

example, if possible the employer should reasonably accommodate the employee

within his or her existing job instead of reassigning him or her. See id. at 1170-

71. If such accommodation is impossible, the employer need only reassign the

employee to an existing vacant position for which the employee is qualified. See

id. at 1170. Moreover, an employer need not reassign an employee to a position

which would be a promotion or would constitute an undue burden on the

employer. See id. 

Notwithstanding these limitations, “the reassignment obligation . . .

mean[s] something more than merely allowing a disabled person to compete
8

 “The federal regulations implementing the ADA ‘envision an interactive

process that requires participation by both parties,’” Templeton v. Neodata Servs.,

Inc., 162 F.3d 617, 619 (10th Cir. 1998) (quoting Beck v. University of Wisconsin

-23-

equally with the rest of the world for a vacant position.” Id. at 1165. Although

the right to reassignment is not absolute, “it may very well be determined that

reassignment is a reasonable accommodation under all of the circumstances. If it

is so determined, then the disabled employee has a right in fact to the

reassignment, and not just to the consideration process leading up to the potential

reassignment.” Id. at 1166; see also id. at 1167. Hence, under Smith, a failure to

reassign a disabled employee most certainly can constitute discrimination, and

therefore a basis for liability, under the ADA.

Here, plaintiffs’ positions as police officers could not be modified to

accommodate their disabilities and consideration of reassignment was therefore

appropriate. The district court correctly instructed the jury that reassignment may

be required, subject to various limitations. 

3. Futility Instruction

Denver next contends the district court incorrectly instructed the jury that

plaintiffs need not have requested reassignment if they knew the employer had a

policy forbidding it. Denver argues that this instruction erroneously relieved

plaintiffs of their obligation to initiate the interactive process envisioned by the

ADA.8 Plaintiffs do not dispute the importance of the interactive process in
Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)). We affirmed the importance

of this process in Smith, 180 F.3d at 1171-72. In general, an employee requiring a

reasonable accommodation will need to initiate the interactive process by

notifying the employer of his disability and resulting limitations, and requesting

reassignment if no reasonable accommodation is possible in the employee’s

existing job. See id. “In expressing a desire for reassignment, an employee need

not use magic words.” Id. at 1172. Both parties thus have an obligation to

interact in good faith to determine how to reasonably accommodate the employee. 

See id. Typically, employees and employers will determine reasonable

accommodations through this process. See id.

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accommodating employees but assert that when the employer has an established

policy against reassignment, the ADA does not require employees to engage in the

“futile gesture,” International Bhd. of Teamsters v. United States, 431 U.S. 324,

366 (1977), of requesting reassignment.

 In Teamsters, the Supreme Court recognized that “[a] consistently enforced

discriminatory policy can surely deter job applications from those who are aware

of it and are unwilling to subject themselves to the humiliation of explicit and

certain rejection.” Id. at 365. For example, “[i]f an employer should announce

his policy of discrimination by a sign reading “Whites Only” on the hiring-office

door, his victims would not be limited to the few who ignored the sign and

subjected themselves to personal rebuffs.” Id. Therefore, “[w]hen a person’s

desire for a job is not translated into a formal application solely because of his

unwillingness to engage in a futile gesture he is as much a victim of

discrimination as is he who goes through the motions of submitting an
9

 This court has excused litigants in other contexts from engaging in

exercises in futility. See New Mexico Ass’n for Retarded Citizens v. New Mexico,

678 F.2d 847, 851 (10th Cir. 1986) (finding that pursuit of individualized

administrative remedies would be futile where plaintiffs sought restructuring of

entire state system); Gilchrist v. United States, 430 F.2d 631, 633 (10th Cir. 1970)

(excusing draftee from exhaustion requirement because appealing his

reclassification would not effect Draft Board’s underlying regulations).

-25-

application.” Id. at 365-66. In order for a nonapplicant plaintiff to merit relief,

he has “the not always easy burden of proving that he would have applied for the

job had it not been for [the employer’s discriminatory] practices.” Id. at 368. 

Significantly, the legislative history of the ADA specifically indicates that

the futile gesture doctrine enunciated in Teamsters applies to employment actions. 

See H. Rep. No. 101-485 (II) at 82-83 (1990), reprinted in 1990 U.S.C.C.A.N.

303, 365; S. Rep. No. 101-116 at 43 (1989). The logic of Teamsters similarly

applies to ADA cases in which an employer has a set policy against a particular

type of reasonable accommodation, or against such accommodation generally. If

a disabled employee actually knows of an employer’s discriminatory policy

against reasonable accommodation, he need not ignore the policy and subject

himself “to personal rebuffs” by making a request that will surely be denied.9

Although the futile gesture doctrine is applicable in the ADA context, the

burden is typically on the employee to initiate the interactive process. Only in the

rare case where an employer has essentially foreclosed the interactive process
10 The record reflects that both Mr. Davoll and Mr. Escobedo affirmatively

inquired about other job opportunities with the city and were rebuffed. They

therefore satisfied their burden of initiating the interactive process. See Smith,

180 F.3d at 1171-72.

-26-

through its policies or explicit actions will the futile gesture doctrine apply. Cf.

 Butelmeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1285 (7th Cir. 1996)

(excusing mentally ill plaintiff from requesting reasonable accommodation

because “he may have thought it was futile to ask, after [his employer] told him

he would not receive any more special treatment.”). We emphasize that an

employee’s subjective belief about the futility of initiating the interactive process

will not, by itself, relieve him or her of that obligation. See Loulseged v. Akzo

Nobel Inc., 178 F.3d 731, 739 (5th Cir. 1999).

Here, all three plaintiffs were well aware of Denver’s policy of refusing to

reassign disabled police officers to Career Service positions. At the same time,

DPD could not keep plaintiffs in their existing jobs because they could not fire

weapons or make forcible arrests. Consequently, the policy against transferring to

Career Services positions foreclosed the only reasonable accommodation that

could have assisted plaintiffs – reassignment. Under such circumstances,

plaintiffs could rely on the futile gesture doctrine. 

Indeed, Ms. Clair’s10 experience illustrates why this doctrine must be a part

of the ADA framework. She not only was aware of Denver’s policy against
-27-

reassignment but was also explicitly told by Sargent Maes that the city would not

help her find another position. Both Denver’s set policy and Sargent Maes’

comment effectively indicated that the city had no intention of engaging in the

interactive process in good faith with Ms. Clair. Her “failure” to inquire about

reassignment was a logical result of the city’s position. Denver cannot preempt

the interactive process with its policy and actions and then escape liability by

claiming Ms. Clair did not properly initiate the process. Cf. Beck v. University of

Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (“[N]either party

should be able to cause a breakdown in the process for the purpose of either

avoiding or inflicting liability.”).

 The district court instructed the jury that “[t]he employee is not required to

request reassignment or transfer if he or she is aware that an employer has a

policy of not providing that form of reasonable accommodation,” Aplt. App. at

1445, and that the plaintiffs bore the burden of showing “[t]hat [he or she] asked

to be reassigned, or but for his or her knowledge of the employer’s ‘noreassignment’ policy, would have asked to be reassigned,” id. at 1448. Those

instructions correctly explained the futile gesture doctrine. 

4. Equal Treatment

Denver asserts the district court abused its discretion by refusing to instruct

the jury that the ADA simply requires equal treatment. Denver proposed
-28-

instructions which explained that plaintiffs “were treated the same as all other

employees of the City or the Denver Police Department.” Id. at 1414; see also id.

at 1416. The district court explained that it rejected the instruction in part

because “[t]he ADA requires an employer 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.” Id. at 2769.

As noted above, “the reassignment obligation . . . mean[s] more than

merely allowing a disabled person to compete equally with the rest of the world

for a vacant position.” Smith, 180 F.3d at 1165. An employer’s policy that does

not provide accommodations for non-disabled workers who likely do not need it

will not excuse the employer’s failure to reasonably accommodate disabled

workers. The district court acted well within its discretion in rejecting Denver’s

proposed instruction. 

5. Substantially Limited with Respect to the “Major Life Activity” of

Working

Denver contests the district court’s rejection of its proposed jury instruction

on whether plaintiffs were limited in a major life activity, and also claims the

instruction defining “substantially limited with respect to working” was
11 We are unclear whether Denver is also arguing that plaintiffs must prove

they are limited in a major life activity other than working. This court considers

working to be a major life activity under the ADA, and so no additional limitation

need be proved. See Siemon v. AT&T Corp., 117 F.3d 1173,1176 (10th Cir. 1997)

(finding that working is a major life activity and citing Bolton v. Scrivner, Inc.,

36 F.3d 939, 942 (10th Cir. 1994)). But see Sutton v. United Airlines, 119 S. Ct.

2139, 2151 (1999) (questioning whether work can be considered a major life

activity under the ADA and assuming without deciding that it can).

-29-

misleading. We consider each claim in turn.11

The district court correctly instructed the jury that “major life activities”

under the Americans with Disabilities Act include “sitting, standing, walking,

lifting, reaching, performing manual tasks, working, and caring for oneself.” Aplt.

App. at 2878; see McGuinness v. University of New Mexico Sch. of Med., 170

F.3d 974, 978 (10th Cir. 1999) (quoting 29 C.F.R. § 1630.2 (i)) (including caring

for oneself, performing manual tasks, walking, and working in the definition of

“major life activity” under the ADA); Pack v. Kmart Corp., 166 F.3d 1300, 1305

(10th Cir. 1999) (noting that, inter alia, sitting, standing, lifting, and reaching

constitute “major life activities” under the ADA); Nielsen v. Moroni Feed Co.,

162 F.3d 604, 610 n.11 (10th Cir. 1998) (listing “major life activities” under the

ADA); Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1173-74 (10th Cir.

1996) (noting “[t]he appendix to the regulations provides that ‘other major life

activities include, but are not limited to, sitting, standing, lifting, reaching,’” and

holding that lifting is a “major life activity” under ADA). Denver did not contest
12 In determining whether an ADA plaintiff is substantially limited in a

major life activity, the jury should consider “(i) The nature and severity of the

impairment; (ii) The duration or expected duration of the impairment; and (iii)

The permanent or long term impact, or the expected permanent or long term

impact of or resulting from the impairment.” MacDonald v. Delta Air Lines, Inc.,

-30-

this definition, but proposed that the district court also instruct the jury that “[i]n

this case, the Plaintiffs claim they are limited in the major life activity of

working.” Aplt. App. at 1419. The district court declined to do so and Denver

now asserts that “the private plaintiffs never pled or proved [the limitation of] a

substantial life activity other than working.” Aplt. Br. at 33.

Denver’s contention is simply incorrect. The private plaintiffs’ complaint

did not enumerate the life activities in which they are substantially limited

(working or otherwise), and the United States complaint on behalf of Jack Davoll

specifically alleged that his injuries substantially limited his ability to “walk[],

stand[], and work[].” Aplt. App. at 125. The pretrial record and trial transcript

contain considerable evidence of plaintiffs’ substantial limitations in various life

activities including sitting, standing, lifting, reaching, and sleeping. Any

assertion to the contrary is disingenuous. The district court was well with in its

discretion to reject Denver’s proposed instruction on the matter.

Denver also argues that the district court misled the jury by instructing it to

consider the “substantially limited with respect to a major life activity” inquiry in

two phases.12 The district court followed the administrative regulations and
94 F.3d 1437, 1444 (10th Cir. 1996) (quoting 29 C.F.R. § 1630.2 (j)(2)). In

determining whether such a plaintiff is substantially limited with respect to

working, the jury should also consider these additional factors: 

(A) the geographical area to which the individual has reasonable

access;

(B) the job from which the individual has been disqualified because

of an impairment, and the number and types of jobs utilizing similar

training, knowledge, skills or abilities, within that geographical area,

from which the individual is also disqualified because of the

impairment (class of jobs); and/or

(C) the job from which the individual has been disqualified because

of an impairment, and the number and types of other jobs not

utilizing similar training, knowledge, skills or abilities, within that

geographical area, from which the individual is also disqualified

because of the impairment (broad range of jobs in various classes).

Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10th Cir. 1994) (quoting 29 C.F.R.

§1630.2(j)(3)(ii)).

-31-

instructed the jury to first determine whether plaintiffs were substantially limited

with respect to a major life activity other than working. If the jury found

plaintiffs were not so limited, the jury was to then consider whether plaintiffs

were substantially limited with respect to working. See 29 C.F.R. pt. 1630, app. §

1630.2(j). Such an instruction sets forth a logical framework for the jury to

consider working and other “major life activities” and the factors associated with

each. The district court did not abuse its discretion in so instructing the jury. 

B. Sufficiency of the Evidence

We next turn to Denver’s contention that insufficient evidence supported

the jury’s verdict. Denver asserts the evidence was insufficient to support the
13 Denver contends that because plaintiffs could not perform the essential

functions of the police officer position, the evidence was insufficient to prove an

ADA claim. That arguments merely conflates a sufficiency of the evidence

question with the legal question of who is a “qualified individual with a

disability” under the ADA. In essence Denver is arguing that in order to be a

qualified individual with a disability, a plaintiff must be able to perform the

essential functions of the job he or she holds. We rejected that argument in Part

III.A.1 of this opinion. 

-32-

jury’s findings that (1) plaintiffs were “qualified individuals with disabilities;”13

(2) plaintiffs were qualified for vacant positions within the Career Service; and

(3) reassignment of plaintiffs to Career Service positions would not constitute an

undue hardship on the city. The United States and the private plaintiffs argue that

we cannot consider Denver’s assertions on appeal because Denver did not move

for judgment as a matter of law at the close of all the evidence as required by Fed.

R. Civ. P. 50. We agree.

At the close of plaintiffs’ evidence, Denver moved for judgment as a matter

of law claiming that none of the plaintiffs had established they “are individuals

who are disabled.” Aplt. App. at 3664. Specifically, Denver asserted plaintiffs

“ha[d] not established that there is a significant limitation on any major life

activity, and with respect to the issue of their qualifications, that the plaintiffs

have not established as a matter of law that any of the plaintiffs have met all of

the qualifications and requirements of the employer.” Id. at 3665. Denver then

put on its defense, which included calling numerous witnesses. At the close of all
-33-

the evidence, plaintiffs moved for judgment as a matter of law but Denver did

not.

A failure to move for a directed verdict on a particular issue will bar

appellate review of that issue. See FDIC v. United Pac. Ins. Co., 20 F.3d 1070,

1076 (10th Cir. 1994) (“Defendant’s failure to raise the bond coverage issue in its

directed verdict motion precludes us from reviewing the sufficiency of the

evidence to support the jury’s bond coverage finding”); Cleveland v. Piper

Aircraft Corp., 890 F.2d 1540, 1551 (10th Cir. 1989) (“Failure to move for a

directed verdict on this ground . . . precludes Defendant from challenging the

sufficiency of the evidence of crashworthiness negligence on appeal.”); Firestone

Tire & Rubber Co. v. Pearson, 769 F.2d 1471, 1478 (10th Cir. 1985). Similarly,

“[a]s a general rule, a defendant’s motion for directed verdict made at the close of

the plaintiff’s evidence is deemed waived if not renewed at the close of all the

evidence; failure to renew that motion bars consideration of a later motion for

judgment n.o.v.” Karns v. Emerson Elec. Co., 817 F.2d 1452, 1455 (10th Cir.

1987) (citing cases). “Failure to renew the motion thus prevents a defendant from

challenging the sufficiency of the evidence on appeal.” Id.; see also 9A CHARLES

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2536

(2d ed. 1994) (“It is thoroughly established that the sufficiency of the evidence is

not reviewable on appeal unless a motion for judgment as a matter of law was
-34-

made in the trial court. Indeed a motion at the close of plaintiff’s case will not do

unless it is renewed at the close of all the evidence.”). 

Denver did not move for judgment as a matter of law on whether plaintiffs

were qualified for vacant positions at the close of the evidence, and never moved

for judgment as a matter of law on the undue hardship issue. Denver does not

contend otherwise, nor does it claim that it should be excepted from the general

rule precluding appellate review. We therefore decline to consider its sufficiency

of evidence claims. 

C. Evidentiary Issues

Denver asserts the district court erred in four of its evidentiary and

discovery rulings. Specifically, Denver contests (1) the district court’s

prohibition of the term “affirmative action” and like phrases at trial; (2) the

introduction of one of Denver’s responses to a request for an admission; (3) the

admission of Dr. Kleen’s testimony; and (4) the denial of Denver’s motion to

extend expert witness discovery and for examination of plaintiffs pursuant to Fed.

R. Civ. P. 35. We review a district court’s evidentiary rulings and rulings on

motions in limine for an abuse of discretion. See McCue v. Kansas Dept. of

Human Resources, 165 F.3d 784, 788 (10th Cir. 1999); Den Hartog v. Wasatch

Academy, 129 F.3d 1076, 1092 (10th Cir. 1997). We review de novo a district

court’s interpretation of the Federal Rules of Evidence. See Reeder v. American
-35-

Econ. Ins. Co., 88 F.3d 892, 894 (10th Cir. 1996).

1. Prohibition on “Affirmative Action” and Like Terms

We first address whether the district court erred in granting plaintiffs’

motion in limine prohibiting Denver from using terms like “affirmative action,”

“special rights,” and “preferences.” In granting that motion, the district court

stated, “[w]ith regard to the issues of defendants using language at trial that

plaintiffs were seeking preferences or affirmative action or special rights,

defendants are precluded from using such language because it would simply

muddy the waters and obfuscate the issues, and its prejudicial effect might

outweigh its probative value.” Aplt. App. at 2767. On appeal, Denver does not

deny that such language would have “mudd[ied] the water” or “obfuscate[d] the

issue.” Instead, Denver contends the district court’s ruling was incorrect because

it was based on the court’s erroneous legal interpretation that ADA requires

something beyond equal treatment of disabled and nondisabled employees.

As noted above, Denver’s interpretation of the ADA is incorrect. 

Denver again “erroneously conflates ‘affirmative action’ with the statutory

definition of discrimination.” Smith, 180 F.3d at 1167. Such “labels cannot

substitute for Congress’ statutory mandate in the ADA.” Id. Congress included

“reassignment to a vacant position” in its definition of “reasonable

accommodation,” and legislated that the “failure reasonably to accommodate
14 The use of the term “affirmative action” in the disability context is

somewhat misleading. While reasonable accommodation requires some

affirmative act on the part of the employer, the Supreme Court distinguishes

between acts that constitute reasonable accommodations and those acts that

fundamentally alter the nature of a program, which it terms “affirmative action.” 

See Alexander v. Choate, 469 U.S. 287, 300 n.20 (1985). To further confuse the

matter, this differs from the definition of affirmative action as “a remedial policy

for the victims of past discrimination.” Id. The phrase is thus of little use in

analyzing the ADA. Instead it provides a conclusory (and politically loaded)

description of a requested accommodation. 

-36-

(including reassignment) [is] a prohibited act of discrimination.” Id. The legal

underpinnings of the district court’s ruling were sound because, as we held in

Smith, we view plaintiffs’ request for reassignment as a reasonable

accommodation and not “affirmative action.”14

Moreover, the district court’s ruling did not inhibit Denver from invoking

phrases almost identical to those prohibited, as well as other language that

conveyed the same message. Throughout the trial, Denver’s attorneys and

witnesses discussed their reluctance to give “preferences,” Aplt. App. at 3466; see

also id. at 3429, 3600, or jobs based “on status,” id. at 2849, 3436, and the

importance of maintaining “a level playing field,” id. at 2940, 2942, 3848; see

also id. at 3846. Denver emphasized that plaintiffs wanted “better treatment,”

than others, id. at 3747, and were “seeking . . . an advantage,” id. at 3839. In

closing argument Denver explained “this case is about . . . the plaintiffs wanting

an advantage with respect to a job in the City and County of Denver, and that . . .
-37-

advantage is a disadvantage to the rest of the employees in the Career Service of

the City and County of Denver.” Id. at 3834. Under such circumstances, any

possible error in the district court’s ruling is harmless. 

2. Stipulation Regarding Discovery Responses

Denver contends the district court erred in refusing to allow it to withdraw

a stipulation to the admissibility and authenticity of its discovery responses

which, it claims, contained a typographical error. “District courts . . . are vested

with broad discretion in determining whether to hold a party to a stipulation or

whether the interests of justice require that the stipulation be set aside.” Wheeler

v. John Deere Co., 935 F.2d 1090, 1098 (10th Cir. 1991).

Plaintiffs’ request for admission stated, “Admit you contend that . . . police

officers with disabilities who cannot make a forcible arrest or shoot a firearm are

not qualified individuals with disabilities as defined under the ADA.” Aplt. App.

at 506. Denver responded, “deny. . . . Defendants contend that police officers

who cannot make a forcible arrest and/or shoot a firearm are qualified individuals

with a disability as defined under the ADA.” Id. It is not entirely clear that

Denver’s response contains a “typographical” error as it twice affirms that

plaintiffs are qualified individuals with disabilities. Nevertheless, Denver used

the ample opportunity it had both at pretrial and at trial to contest whether

plaintiffs were qualified individuals with disabilities and to explain to the jury
-38-

that the response was inaccurate. Moreover, the district court did not instruct the

jury to give any special weight to the admission. See Keen v. Detroit Diesel

Allison, 569 F.2d 547, 553-54 (10th Cir. 1978). The court was well within its

discretion in refusing to allow Denver to withdraw its stipulation to this discovery

response.

3. Testimony of Dr. Kleen

Denver complains that Dr. Kleen, Mr. Davoll’s treating physician, was

actually an undisclosed expert whose testimony fell within the parameters of Fed.

R. Evid. 702. It asserts the district court erred in admitting Dr. Kleen’s testimony

because it went beyond the scope of his treatment of Mr. Davoll, and because

plaintiffs did not properly disclose him as an expert pursuant to Fed. R. Civ. P.

26(a)(2), which requires a party to disclose the identity of an expert and the

expert to provide a written report. Plaintiffs and the United States contend that

Dr. Kleen testified as a lay witness.

A treating physician is not considered an expert witness if he or she

testifies about observations based on personal knowledge, including the treatment

of the party. See Richardson v. Consolidated Rail Corp., 17 F.3d 213, 218 (7th

Cir. 1994); see also FED. R. CIV. P. 26(a)(2) advisory committee’s note (1998)

(distinguishing between treating physicians and retained experts); cf. Patel v.

Gayes, 984 F.2d 214, 218 (7th Cir. 1992) (treating physicians’ opinions on
-39-

industry standard of care constituted classic expert testimony). A treating

physician, even when testifying as a lay witness, may state “expert” facts to the

jury in order to explain his testimony. See 4 JACK B. WEINSTEIN & MARGARET A.

BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 701.08 (Joseph M. McLaughlin ed.,

2d ed. 1999) (noting that a doctor testifying as a lay witness should be given

“loose rein to state what are truly facts, even if they are ‘expert’ facts”). In

addition, “a lay witness may testify as to any opinion ‘(a) rationally based on the

perception of the witness and (b) helpful to a clear understanding . . . of a fact in

issue.’” Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 1996) (quoting FED. R.

EVID. 701). In Weese, we noted that, in accordance with Rule 701, “any opinions

offered by [a lay witness doctor] were based on his experience as a physician and

were clearly helpful to an understanding of his decision making process in the

situation.” Id.

In the present case, Dr. Kleen testified as a lay witness who had treated Mr.

Davoll. While he did explain various medical terminology and drew a diagram

explaining Mr. Davoll’s injury, those actions do not render Dr. Kleen an expert

witness. His factual explanations of terms like “rehabilitation,” “modality,” and

“soft tissue injury,” as well as the diagram explaining Mr. Davoll’s injuries,

clarified his testimony on his treatment of Mr. Davoll and did not constitute

opinion testimony.
15 On appeal, Denver also contends that Dr. Kleen testified with respect to

specific ADA terminology. Denver provides no record cite and we have found no

such testimony. We also note that Denver questioned Dr. Kleen at length about

the general physical abilities of “the average American.” Aplt. App. at 3116. Dr.

Kleen replied that “a patient should be able to walk, talk, eat, sit, stand . . .

without physical help.” Id. at 3117. Denver cannot now complain about Dr.

Kleen’s responsive answers to its questioning.

-40-

Denver’s two specific objections to Dr. Kleen’s testimony are similarly

without merit.15 Denver objected to questioning it contends emphasized Dr.

Kleen’s background, and to his assessment of Mr. Davoll’s psychological state. 

See Aplt. Br., Attachments I & J. With respect to the former, the questioning was

cursory, eliciting that Dr. Kleen was licensed to practice in Colorado, received his

medical degree from the University of Minnesota, and specialized in physical

medicine and rehabilitation. He was not questioned about his curriculum vitae,

his prior experience, or his publications. The questioning on his background was

comparable to (and in some cases less than) that of the other lay witnesses at trial. 

With respect to the “psychological impairment” testimony, see Aplt. Br. at 28, Dr.

Kleen simply stated that, based on his interactions with Mr. Davoll, he understood

that Mr. Davoll was suffering from psychological stress because Denver was

“pressuring him to retire.” Aplt. App. at 3090. Dr. Kleen did not attempt to name

a particular psychological disorder or give an in-depth analysis as to Mr. Davoll’s

mental health. He simply stated, as did Mrs. Davoll, that the retirement

proceedings caused Mr. Davoll stress. Cf. id. at 3168, 3170-71 (Mrs. Davoll’s
16 Denver relies on Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599 (10th

Cir. 1997), in pursuing this claim. Summers is distinguishable. The plaintiffs

-41-

testimony regarding the effect of the forced retirement on Mr. Davoll’s mental

state). That conclusion is within the province of a lay witness such as Dr. Kleen

who has personal knowledge of the situation. See United States v. Anthony, 944

F.2d 780, 782-83 (10th Cir. 1991) (lay witnesses may testify as to the sanity or

insanity of a person if the witness’ relationship with that person is of sufficient

intimacy and duration); see also United States v. Garcia, 994 F.2d 1499, 1506

(10th Cir. 1993) (“[T]he first hand knowledge requirement may be based on the

lay witness’ perception of otherwise inadmissible out of court statements.”). 

4. Denial of Motion to Extend Expert Witness Discovery and

Examine Plaintiffs

Denver argues that the district court erred in refusing to extend the time

allowed for expert witness discovery and for Fed. R. Civ. P. 35 discovery. We

review discovery rulings for an abuse of discretion. See Cole v. Ruidoso Mun.

Schs., 43 F.3d 1373, 1386 (10th Cir. 1994). “[W]e will not reverse a decision to

limit discovery ‘absent a clear showing that the denial of discovery resulted in

actual and substantial prejudice to the complaining litigant.’” Gile v. United

Airlines, Inc., 95 F.3d 492, 495 (7th Cir. 1996) (quoting Searls v. Glasser, 64

F.3d 1061, 1068 (7th Cir. 1995)). 

The district court’s decisions do not appear to be an abuse of discretion.16
there had no opportunity to cure the prejudice flowing from the district court’s

decision. Also, the Summers plaintiffs had a strong reason for needing an

extension of time – the district court chose to exclude the plaintiffs’ designated

experts. See id. at 605 (“[T]his dispute presents unique facts that demand

reversal.”). Here, the reason Denver did not act within the confines of the

scheduling order is unclear.

-42-

Even assuming arguendo the court’s denial of Denver’s motion was in error,

reversal is clearly not required. After the district court consolidated the United

States’ case with that of the private plaintiffs, Denver had an opportunity to cure

any prejudice flowing from the court’s original rulings but failed to take

advantage of it. First, Denver expressly disavowed any desire to conduct a

physical examination of plaintiffs. The magistrate judge specifically asked, “Am

I correct now that you don’t want a medical examination, or you do want a

medical examination?” Aplt. App. at 2710. Denver’s counsel replied, “We do

not.” Id. at 2711. Similarly, the district court gave Denver additional time to

designate a vocational rehabilitation expert but Denver declined the opportunity. 

Denver may not now claim prejudice from the pre-trial ruling when it had a

chance to cure precisely the prejudice it allegedly suffered and chose not to. Cf.

Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993

(10th Cir. 1999) (appellant failed to take advantage of opportunity to crossexamine witness giving undisclosed testimony outside the presence of the jury);

Real v. Hogan, 828 F.2d 58, 63 (1st Cir. 1987) (appellant failed to show up for
-43-

Rule 35 examinations and then attempted to vacate trial date so he could be

examined). 

D. Remedies

We turn to the appeal and cross-appeal of the remedies awarded to

plaintiffs. Denver appeals the district court’s denial of its request for an

evidentiary hearing on equitable relief. Plaintiffs cross-appeal, contesting the

district court’s decision to limit their front-pay awards to two years after the

judgment instead of awarding front pay for their full work-life expectancies. We

review for an abuse of discretion the district court’s refusal to hold an evidentiary

hearing on equitable relief, cf. FDIC v. Daily, 973 F.2d 1525, 1532 (10th Cir.

1992), and the court’s award of equitable remedies, see Roberts v. Colorado State

Bd. of Agric., 998 F.2d 824, 826 (10th Cir. 1993).

1. Compensatory Damages

Denver contends the district court erred in failing to instruct the jury that

Title II provides for compensatory damages only upon a showing of intentional

discrimination. Plaintiffs and the United States claim Denver failed to raise this

issue below in the manner required by Fed. R. Civ. P. 51. We agree. 

The rule provides that “[n]o party may assign as error the giving or the

failure to give an instruction unless that party objects thereto before the jury

retires to consider its verdict, stating distinctly the matter objected to and the
-44-

grounds of the objection.” FED. R. CIV. P. 51. (emphasis added). “Because the

purpose of the objection is to give the court an opportunity to correct any mistake

before the jury enters deliberations . . . an excessively vague or general objection

to the propriety of a given instruction is insufficient to preserve the issue for

appeal.” Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir. 1999)

(citation omitted); see also Tele-Communications, Inc. v. Commissioner, 104 F.3d

1229, 1233 (10th Cir. 1997); Aspen Highlands Skiing Corp. v. Aspen Skiing Co.,

738 F.2d 1509, 1514 (10th Cir. 1984).

In its reply brief, Denver claims that it properly objected to the jury

instructions on compensatory damages and the district court ruled against it; that

even if it did not properly object, it was excused from doing so because the

district court was aware of its position and further objection would have been

futile; and even if it was not excused from objecting, the exclusion of the word

“intentional” from the instruction constituted plain error. We consider each

contention in turn.

Denver claims it objected to the omission of the word “intentional” in the

first set of plaintiffs’ jury instructions on compensatory damages. There Denver

wrote, “[d]efendants object to the omission of the work [sic] ‘intentional’ as all

plaintiffs must in the end prove intentional discrimination. St. Mary’s Honor

Center v. Hicks, 113 S. Ct. 2742, 2747-49 (1993).” Aplt. App. at 1408j. The
-45-

language of that objection is somewhat vague – it is unclear whether Denver was

claiming that plaintiffs must prove intentional discrimination to hold the City

liable or to merit an award of compensatory damages. The cite to Hicks helps

clarify the matter, however. On the pages cited and indeed in the whole opinion,

the Court discusses a Title VII plaintiff’s ultimate burden of persuasion that the

defendant engaged in intentional discrimination. See Hicks, 509 U.S. 502, 506-

511 (1993). The case is not about compensatory damages, and there is simply no

discussion of damages on the cited pages. Thus, Denver’s objection appears to go

to liability and therefore only indirectly to damages. 

Similarly, the district court’s ruling cited by Denver as deciding this issue

against it also concerns intent as an element of liability, not as an element of

compensatory damages. In a hearing on the first set of instructions tendered by

plaintiffs and defendants, the district court rejected all proposed instructions

because they were too long, were confusing, and with respect to defendant’s

instructions disregarded the summary judgment rulings. The court specifically

pointed out proposed instructions that conflicted with its previous rulings and said

at one point, “I have ruled that . . . plaintiffs do not have to prove intent in this

kind of case.” Aplt. App. at 2738. Denver relies on this language to argue the

district court ruled against its compensatory damage objection. However, the

court had not made any previous rulings on compensatory damages; it had only
-46-

ruled on when a failure to accommodate constitutes discrimination under the

ADA. See Davoll, 943 F. Supp. at 1300-01. The district court’s statement, in

context, does not support Denver’s assertion that it properly objected to the

compensatory damage instruction and that its objection was overruled. 

More importantly, when the district court rejected the parties “137 pages”

of proposed instructions, Aplt. App. at 2734, the court made it very clear that it

expected the parties to redraft the instructions in toto and thereafter to make their

objections thereto. After giving the parties some sample instructions, the court

concluded by saying:

Please don’t try and argue your case in the instructions. And

here’s what I want you to do. Look at the ones I gave you. See how

those were done. Get the plaintiffs to make their agreements on what

they’re going to offer, and submit those to the defense. The defense

can itemize whatever objections the defense wants to make to those

instructions and can tender a responsive objection in addition to this,

which is part of your record, to those instructions.

Id. at 2741 (emphasis added). We thus reject Denver’s contention that it was

excused from objecting when the second set of jury instructions were tendered. 

Cf. Gardner v. Chrysler Corp., 89 F.3d 729, 736 n.4 (10th Cir. 1996).

Because Denver did not distinctly state “the matter objected to and the

grounds of the objection,” FED. R. CIV. P. 51, we review for plain error the

court’s instruction on compensatory damages. See Russell v. Plano Bank & Trust,

130 F.3d 715, 718-19 (10th Cir. 1997), cert. denied, 118 S. Ct. 1801 (1998);
-47-

Cartier v. Jackson, 59 F.3d 1046, 1050 (10th Cir. 1995). “To constitute plain

error, the district court’s mistake must have been both obvious and substantial.” 

Id. 

When the district court gave the contested instruction in late 1996, the law

was unsettled as to whether Title II plaintiffs had to prove intentional

discrimination to merit an award of compensatory damages. Compare Alexander

v. Choate, 469 U.S. 287, 299 (1985) (“[T]here is reason to question whether

Congress intended § 504 to reach only intentional discrimination.”), W.B. v.

Matula, 67 F.3d 484, 492, 494 (3d Cir. 1995) (finding compensatory damages are

available under section 504 of the Rehabilitation Act without explicitly limiting

such damages to intentional violations), Rodgers v. Magnet Cove Pub. Schs., 34

F.3d 642, 644-45 (8th Cir. 1994) (same), Tyler v. City of Manhattan, 118 F.3d

1400, 1407 (10th Cir. 1997) (Jenkins, J., dissenting) (“[R]ecent cases . . . suggest

that in the specific context of Title II of the ADA, the compensatory damages

remedy may not depend on proof of intentional discrimination.”), and Niece v.

Fitzner, 922 F. Supp. 1208, 1219 & n.9 (E.D. Mich. 1996) (noting, without

deciding, that some cases have held a showing of intent is required to recover

compensatory damages under the ADA and Rehabilitation Act), with Wood v.

President and Trustees of Spring Hill College, 978 F.2d 1214, 1219 (11th Cir.

1992) (requiring intentional discrimination for compensatory damages under
17 We recognize this court has recently held that “entitlement to

compensatory damages under section 504 of the Rehabilitation Act requires proof

the defendant has intentionally discriminated against the plaintiff.” Powers v.

MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999). Although

supportive of Denver’s legal argument, the district court did not have the benefit

of this case when instructing the jury and any alleged error was therefore not 

“obvious” at the time. Cf. United States v. McVeigh, 153 F.3d 1166, 1219 n.46

(10th Cir. 1998) Moreover, plaintiffs did allege in their complaint that

“[d]efendants actions are intentional and in reckless disregard of the federally

protected civil rights of plaintiffs.” Aplt. App at 13. Denver’s failure to properly

object to the damages instruction denied plaintiffs and the court the opportunity to

cure any error.

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section 504), and Tyler v. City of Mahattan, 849 F. Supp. 1442, 1444 (D. Kan.

1994) (requiring showing of intentional discrimination under Title II of the

ADA), aff’d on other grounds, 118 F.3d 1400. When the law is unsettled, the

decision to instruct one way or the other does not constitute plain error.17 See

Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1394 (11th Cir. 1997). Such was

the case here. 

Moreover, there is another argument to support the district court’s

instruction. The Supreme Court has recognized the proposition that statutes

enacted by Congress pursuant to its spending power should not expose funding

recipients to compensatory damages liability for unintentional violations. See

Franklin v. Gwinnet, 503 U.S. 60, 74 (1992) (“[T]he point of not permitting

monetary damages for an unintentional violation is that the receiving entity of

federal funds lacks notice that it will be liable for a monetary award.”);
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Guardians Ass’n et al. v. Civil Serv. Comm’n, 463 U.S. 582, 597 (1983)

(Remedies to enforce spending power statutes must respect the privilege of the

recipient of federal funds to withdraw and terminate its receipt of federal

money.”). Unlike the Rehabilitation Act, which was enacted under the Spending

Clause, the ADA was enacted under the Commerce Clause and the Fourteenth

Amendment. 42 U.S.C. § 1210(b)(4). Title II entities are not necessarily

recipients of federal funds, and the arguments against liability for compensatory

damages absent intent are arguably less relevant. One could therefore contend

that intent should not be required for Title II violations, even if it is required for

Rehabilitation Act violations. See Ferguson v. City of Phoenix, 157 F.3d 668,

678 (9th Cir. 1998) (Tashima, J., dissenting); Tyler, 118 F.3d at 1414-15 (Jenkins,

J., dissenting). We do not pass on the merits of this argument, but simply note it

strengthens our conclusion that the instruction here was a plausible interpretation

of the law and thus did not constitute plain error.

2. Request for Hearing on Evidentiary Relief

Denver contends the district court abused its discretion in refusing to set a

three-day evidentiary hearing on the appropriate front-pay and back-pay awards,

which it requested after the post-trial status conference. Denver took issue with

plaintiffs’ effort at mitigation as well as the salary level used to calculate the

awards and requested a hearing to challenge plaintiffs’ evidence. In its order
18 At a post-trial status conference in which all parties were participating,

the district court asked, “[W]hat do you want to do on the equitable relief issues? 

Do you want to argue those? Do you want to have a hearing? Do you want me

to make a ruling? What?”

Counsel for the United States replied, “Your Honor, as far as Mr. Davoll

goes, the United States believes we can file a written submission on the back pay

calculation. We have already submitted to defendants an estimate of the back pay

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regarding equitable relief, the district court noted that “[w]ithout reserving the

right to request an evidentiary hearing, defense counsel agreed at the December

11, 1996 status conference that the equitable relief issues would be addressed on

the basis of the parties’ written submissions.” Davoll v. Webb, 968 F. Supp. 549,

553 (D.Colo. 1997). Moreover, the court pointed out that Denver could have

presented evidence relating to these issues at trial as it had much of the relevant

information pretrial, or it could have attached offers of proof to its brief to show a

need for a hearing. Both plaintiffs and the United States had appended

considerable evidence concerning the appropriate equitable relief to their

memoranda. The district court denied Denver’s request as it “ha[d] made no

showing that a hearing is justified nor that it would change the outcome

concerning the equitable relief issues.” Id.

For the first time in its reply brief, Denver argues that it agreed to resolve

by written submission only the issue of Mr. Davoll’s back pay, not other equitable

relief issues. While a few lines of the transcript discussing equitable relief are

marginally ambiguous,18 the record as a whole belies Denver’s contention. In
calculations.”

The court agreed, “It really shouldn’t require a hearing to figure out

something that’s going to be determined by the City’s accounting facility, I

should think.”

Counsel for Denver responded, “That is correct, Your Honor. Your Honor,

what I will propose on that issue is that if they will make a submission to you in

writing, we will make one in response.”

The court and the parties then discussed a briefing schedule. When the

court decided to give the parties extra time, plaintiffs’ counsel said, “We

appreciate that,” indicating the understanding that all plaintiffs were included in

the briefing discussion. Aplt. App. at 1320-21.

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Denver’s Memorandum of Law on equitable relief, nowhere did it represent it was

arguing Mr. Davoll’s back pay award separately from his front-pay award or from

the relief to Ms. Clair and Mr. Escobedo. Moreover, Denver contested Mr.

Davoll’s back pay award but attached no supporting materials, even though it

concedes it agreed to decide this issue on written submissions. Finally, we note

that the district court, plaintiffs, and the United States all clearly understood the

case would be decided on written submissions, as evidenced by the court’s

opinion and the parties’ lengthy attachments to their motions. Denver received

the other parties’ motions and attachments almost a month before it submitted its

own. Denver’s belated argument that it did not agree to have equitable relief

decided on written motions appears to be little more than a disingenuous attempt

to use a barely-ambiguous record to shield itself from the consequences of its

inaction.
19 Although reinstatement is the preferred remedy under the ADA, see

Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 19 (1st Cir. 1999), front pay may be

awarded instead when appropriate, see Fitzgerald v. Sirloin Stockade, Inc., 624

F.2d 945, 957 (10th Cir. 1980). Neither party appeals the district court’s decision

to award front pay.

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Denver also claims it was prejudiced by its inability to cross-examine Dr.

Vogenthaler, plaintiffs’ vocational expert. Denver did not depose Dr.

Vogenthaler although it had the opportunity, and did not designate its own

vocational expert. Denver submitted no evidence to respond to plaintiffs’

economic figures. Denver’s inaction is the source of any prejudice it suffered. 

Cf. Woodworker’s Supply, Inc., 170 F.3d at 993; Real, 828 F.2d at 63. The

district court was within its discretion to deny an evidentiary hearing when the

parties had agreed otherwise and Denver offered no proof that such a hearing was

justified.

3. Front Pay Limitation

On cross-appeal, plaintiffs contend the district court abused its discretion

by awarding front pay to plaintiffs for only two years.19 We recognize that

“determining a front pay award requires the district court to predict future events

and consider many complicated and interlocking factors,” and we therefore review

for an abuse of discretion. Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442,

1458 (10th Cir. 1997). That discretion, however, should be measured against an

anti-discrimination statute’s purpose to make the plaintiffs “whole”. See Carter
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v. Sedgwick County, Kan., 36 F.3d 952, 957 (10th Cir. 1994); Pitre v. Western

Elec. Co., 975 F.2d 700, 704 (10th Cir. 1992). A front-pay award must specify an

end date and take into account any amounts that plaintiffs could earn using

reasonable efforts. Carter v. Sedgwick County, Kan., 929 F.2d 1501, 1505 (10th

Cir. 1991). Although the cut-off date is within the district court’s discretion,

that determination “must be based on ‘more than mere guesswork.’” Id. (citing

Shore v. Federal Express Corp., 777 F.2d 1155, 1160 (6th Cir. 1985)). Cf.

Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975) (“That the court’s

discretion [to award Title VII back pay] is equitable in nature . . . hardly means

that it is unfettered by meaningful standards or shielded from thorough appellate

review.” ). The district court may consider all evidence presented at trial in

formulating the proper award. See EEOC v. General Lines, Inc., 865 F.2d 1555,

1562 (10th Cir. 1989) .

Numerous factors are relevant in assessing front pay including work life

expectancy, salary and benefits at the time of termination, any potential increase

in salary through regular promotions and cost of living adjustment, the reasonable

availability of other work opportunities, the period within which a plaintiff may

become re-employed with reasonable efforts, and methods to discount any award

to net present value. Shore, 777 F.2d at 1160. A court may also consider a

plaintiff’s future in the position from which he was terminated. See Suggs v.
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Servicemaster Educ. Food Mgmt., 72 F.3d 1228, 1234 (6th Cir. 1996). A front

pay award should reflect the individualized circumstances of the plaintiff and the

employer.

Here, plaintiffs submitted vocational economic assessment reports by an

expert, Dr. Vogenthaler, who took into account each plaintiff’s educational level,

disability, age, and gender to determine his or her work life expectancy and

earning capacity. He then looked at how much each plaintiff would have earned

had he or she been reassigned to a city government position for which he or she

was qualified, since those positions pay considerably more than non-city jobs. He

took the difference between the annual city salaries and the annual projected

future earnings for each plaintiff, accounting for cost of living and merit

increases, to determine the amount of front pay each plaintiff deserved per year. 

This method accounts for one’s duty to mitigate damages because a plaintiff will

receive only the difference between the city salary and his or her earning capacity,

not what he or she actually earns. Cf. Shore v. Federal Express Corp., 42 F.3d

373, 378-79 (6th Cir. 1994). The trial record supported Dr. Vogenthaler’s

contention that non-city employment paid less than city employment. For

example, at the time of trial in late 1996, after a lengthy and extensive job hunt

Mr. Davoll had a job that paid $24,000 a year, and Mr. Escobedo earned $8.50 per

hour. Had Mr. Davoll been reassigned to a city position for which he was
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qualified, his salary and benefits for 1997 would have been worth over $56,000;

Mr. Escobedo’s salary and benefits would have been worth over $51,000. Denver

presented no evidence to counter Dr. Vogenthaler’s assessment.

The district court correctly stated the law on assessing front pay awards. 

The court then stated, “an award of front pay to each Private Plaintiff in the

amount calculated by Dr. Vogenthaler from 1997 through 1999, a period of two

years, will allow each a reasonable amount of time to find comparable

employment.” Id. at 1375. The court did not explain on what evidence it based

this finding, but instead cited to two cases which awarded front pay for a two-year

period, Dominic v. Consolidated Edison Co., 822 F.2d 1249, 1258 (2d Cir. 1987),

and Reeder-Baker v. Lincoln Nat’l Corp., 649 F. Supp. 647, 662 (N.D. Ind. 1986). 

Those cases do not explain to us why the district court chose a two-year limitation

here. In Reeder-Baker, the court specifically looked to the difference between the

plaintiff’s present and former salaries – $13,380 annually – to arrive at a

“conservative estimate of the time needed” to make her whole. 649 F. Supp. at

664. In Dominic, the appeals court relied on the district court’s determination

that two years was a sufficient amount of time for the plaintiff, who was 52 and

had a Master’s and a law degree, to receive front pay. See 822 F.2d at 1256-59

(referring to district court’s assessment of front pay amount and duration). In so

finding, the district court had emphasized that three years had passed since the
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plaintiff’s discharge, during which time he had found a new (albeit lower-paying

job), and that his “prospects of obtaining a more lucrative position are good given

his academic credentials and his relative youth.” Dominic v. Consolidated Edison

Co., 652 F. Supp. 815, 820 (S.D.N.Y. 1986).

Because the purpose of front pay is to make each plaintiff whole, the

district court must look at the individualized circumstances of each plaintiff. A

flat rule awarding front pay for a specific period, no matter how long or short,

would defeat the purpose of the award. It is unclear here why the district court

thought a two year front pay award would adequately compensate plaintiffs; the

record does not appear to support that assessment. See Carter, 36 F.3d at 957. 

We do not specify an appropriate time for the award nor do we hold that two

years is definitely inappropriate in these cases. We do, however, require the

district court to show the end date is based on more than “mere guesswork.” See

Carter, 929 F.2d at 1505. We therefore reverse and remand the front pay award

and instruct the district court to articulate the specific bases for the end date for

each plaintiff, taking into consideration the factors we have outlined above.

E. Equal Protection Claim

The district court granted Denver’s motion for summary judgment on

plaintiffs’ equal protection claim. Davoll v. Webb, 943 F. Supp. at 1303-04. We

review the grant of summary judgment de novo, viewing the evidence in the light
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most favorable to the party against whom summary judgment was entered. Smith,

180 F.3d at 1159-60.

Plaintiffs claim that Denver violated their equal protection rights by

“allowing some police officers with disabilities as or more severe than Plaintiffs’

to remain as commissioned police officers, while terminating Plaintiffs, and by

affording other City employees the opportunity of reassignment to vacant

positions, but denying this right to the Plaintiffs.” Aplee. Br. at 48. They also

assert that the disabled should be considered a suspect class and that Denver’s

policies should therefore be subject to heightened scrutiny.

“Although protected by statutory enactments such as the Americans with

Disabilities Act, the disabled do not constitute a ‘suspect class’ for purpose of

equal protection analysis.” Hansen v. Rimel, 104 F.3d 189, 190 n.3 (8th Cir.

1997); see also Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 442-46

(1985); Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996); Welsh v. City

of Tulsa, 977 F.2d 1415, 1420 (10th Cir. 1992). We therefore apply the rational

basis test, upholding the policy “if there is ‘any reasonably conceivable state of

facts that could provide a rational basis for the qualification.’” Spragens v.

Shalala, 36 F.3d 947, 951 n.3 (10th Cir. 1994).

We first consider plaintiffs’ argument that Denver’s decision to permit

some disabled police officers to stay on the force while terminating others
-58-

violates their equal protection rights. In the 1980s, the DPD required every police

officer, regardless of actual job duties, to be able to fire a gun and effect a

forcible arrest. Plaintiffs argue that this policy has not been consistently enforced

among disabled police officers. The record indicates that DPD would place its

officers on medical leave or light duty work after a physician notified the

department that an officer could not perform the essential functions of the job. 

Admittedly there were officers whose physical appearance would make one doubt

whether they could actually perform the essential functions of the job. However,

no doctor had notified the DPD that these officers were unable to perform their

duties. It is rational for Denver to wait for notice from a doctor instead of

assessing limitations based on physical appearance. Thus, this disparate treatment

withstands rationality review.

We next consider Denver’s policy which forbids transfer between the

Career and Classified Service. The two systems have separate testing procedures

and different pay scales and benefits. Keeping the systems separate could

conceivably provide administrative ease, a reason sufficient to withstand

rationality review. This, of course, does not mean that Denver’s policy is lawful:

it simply means it is not unconstitutional. Cf. Welsh, 977 F.2d at 1420 & n.3

(noting that a decision which withstands rationality review could nevertheless

violate the Rehabilitation Act).
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F. Class Certification

Plaintiffs also cross-appeal the district court’s denial of their motion for

class certification. Plaintiffs proposed a class action on behalf of the following:

[F]ormer, present and future members of the Denver Police

Department who have or will have disabilities; who have been or will

be denied reasonable accommodation of their disabilities by

defendants and aggrieved by defendants’ ongoing failure to

implement the provisions of the ADA for Denver Police Officers;

who have been or will be denied equal protection and due process

through defendants’ ongoing disparate treatment of employees with

disabilities and termination and constructive discharge of persons

with disabilities.

Aplt. App. at 6-7. When they moved for class certification, plaintiffs also

requested a bifurcated trial so the court could first adjudicate the legality of

Denver’s no-reassignment policy and then assess individualized relief. The

district court considered whether the class description was “sufficiently definite

so that it is administratively feasible for the court to determine whether a

particular individual is a member.” Davoll v. Webb, 160 F.R.D. 142, 144 (D.Colo.

1995). According to the court, the individualized consideration required to

determine whether each class member was disabled under the ADA rendered the

proposed definition “untenable.” Id. at 146.

“[T]he district court has broad discretion to determine whether the class

description is sufficiently definite.” 5 JAMES W. MOORE ET AL., MOORE’S

FEDERAL PRACTICE § 23.21 [5] at 23-61 (3d ed. 1999). If the court finds that the
20 We understand plaintiffs’ concern that by denying their class

certification motion and upholding the United States pattern and practice action,

this decision may be interpreted as holding that only the government can bring a

class-wide ADA employment suit. Such an interpretation would be unfounded. 

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proposed definition is not sufficiently definite, it may modify the definition

instead of dismissing the proposed action. Id. § 23-21[7] at 23-62.2. Generally

speaking,

[t]he discretion granted to the trial court on the certification issue

leaves the decision as to what method of trial is most efficient

primarily to the court that is in the best position to determine the

facts of the case, to appreciate the consequences of alternative

methods of resolving the issues of the case and that is in the best

position to select the most efficient method for their resolution.

Boughton v. Cotter Corp., 65 F.3d 823, 826 (10th Cir. 1995).

We are persuaded the district court acted within its discretion. The

proposed class description defined its membership in part as those police officers

who were disabled, as defined by the ADA. The district court would have had to

conduct individualized inquiries to determine whether a potential class member

met the statutory definition. See Sutton v. United Air Lines, 119 S. Ct. 2139,

2147 (1999). As the district court noted, even the named plaintiffs’ affidavits in

support of the class certification motion did not allege that they met the ADA

definition of “disability.” Under these circumstances, it was within the district

court’s discretion to decide that determining class membership under the proposed

definition would be administratively infeasible.20

 Cf. Chandler v. City of Dallas,
Given the deferential standard by which we review class certification, it is

possible the district court could have certified the class in its discretion, or could

have modified the proposed definition so that it was sufficiently definite. Of

course, we do not decide those questions as our holding here is limited to the

issue directly before us.

At the same time, we do note that a pattern and practice action brought by

the United States pursuant to section 707 of Title VII, 42 U.S.C. § 2000e-6, is not

subject to the requirements of Fed. R. Civ. P. 23. See General Tel. Co v. EEOC,

446 U.S. 318, 327 & n.9 (1980).

-61-

2 F.3d 1385, 1396 (5th Cir. 1993).

G. Pattern and Practice Suit

The United States brought a pattern and practice action alleging Denver

“ha[s] pursued and continue[s] to pursue policies and practices that discriminate

in employment on the basis of disability” in violation of the ADA. The district

court bifurcated the action into a “liability phase” to determine whether Denver’s

policy comported with the ADA, and a “remedial phase” to determine whether

there were any qualified individuals with disabilities who merited relief. About a

month before trial, the district court granted summary judgment on the question of

liability in favor of the United States. The court held Denver’s policy forbidding

reassignment of disabled police officers to Career Service positions violated the

ADA, and that Denver “failed to produce evidence from which a reasonable trier

of fact could find that accommodating such individuals would cause it an undue

hardship.” United States v. City & County of Denver, 943 F. Supp. 1304, 1313

(D. Colo. 1996). The court later certified this summary judgment order for
21 We rejected this claim supra in part III A.2.

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interlocutory appeal pursuant to 28 U.S.C § 1292(b).

Denver raises several issues in this interlocutory appeal. First, it argues

that the United States has not properly brought an ADA pattern and practice suit

because it followed the framework of International Bhd. of Teamsters, 431 U.S.

324 (1977), a systemic disparate treatment Title VII case, and not the test set

forth in White v. York Int’l Corp., 45 F.3d 357 (10th Cir. 1995), an ADA case. 

Denver also asserts that the Teamsters framework is inapposite because Denver

applies its policy neutrally, that reassignment is never a required reasonable

accommodation,21 and that requiring reassignment here would constitute an undue

hardship. Finally, Denver requests that we address the necessary elements of the

remedial phase. 

Title I of the ADA adopts the powers, remedies, and procedures set forth in

Title VII. See 42 U.S.C. § 12117(a). Section 707 of Title VII states 

[w]henever the Attorney General has reasonable cause to believe that

any person or group of persons is engaged in a pattern or practice of

resistance to the full enjoyment of any . . . [protected] rights . . . and

that the pattern or practice is of such a nature and is intended to deny

the full exercise of the [protected] rights . . ., the Attorney General

may bring a civil action.

42 U.S.C. § 2000e-6(a). The United States brought this pattern and practice

action pursuant to this subsection, as it is authorized to do under Title I.
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In Teamsters, the Supreme Court addressed, inter alia, the proper structure

for a pattern and practice case brought by the government. See 431 U.S. at 357-

62. The defendant there argued that in order to maintain a pattern and practice

action, the United States should have to prove each element of the McDonnell

Douglas test, which sets forth the burden for an individual prima facie case under

Title VII. See id. at 357. The Court rejected this contention. It ruled that in a

pattern or practice action the Government’s

initial burden is to demonstrate that unlawful discrimination has been

a regular procedure or policy followed by an employer or group of

employers. . . . At the initial, “liability” stage of a pattern-or-practice

suit the Government is not required to offer evidence that each

person for whom it will ultimately seek relief was a victim of the

employer’s discriminatory policy. Its burden is to establish a prima

facie case that such a policy existed.

Id. at 360; see also Coe v. Yellow Freight Sys., Inc., 646 F.2d 444, 449 n.1. (“In a

true ‘pattern and practice’ suit, the government is not required to show individual

discrimination with respect to each person for whom it seeks relief when

establishing its prima facie case.”). However, when the Government also seeks

individual relief for the victims of the unlawful practice, the “district court must

usually conduct additional proceedings after the liability phase of the trial to

determine the scope of individual relief.” Teamsters, 431 U.S. at 361.

Just as McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), sets forth

the elements of a prima facie case for an individual seeking relief under Title VII,
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White v. York Int’l Corp., 45 F.3d 357, sets forth the elements of a prima facie

case for an individual seeking relief under the ADA in this circuit, id. at 360-61. 

And, just as the Court recognized that the specifics of the McDonnell Douglas

framework are inapplicable in certain factual situations, including when the

government has brought a broad-based pattern and practice action, see Teamsters

at 358-60, it is clear that White does not articulate the elements of a prima facie

case when the government “seek[s] to protect the public’s interest” through a

pattern and practice action, Coe, 646 F.2d at 449 n.1. Teamsters sets forth a

logical and efficient framework for allocating burdens of proof in pattern and

practice employment discrimination suits, and we approve of the district court’s

use of that framework in this case. See United States v. Morvant, 843 F.

Supp.1092, 1096 (E.D. La. 1994).

Denver also argues that the United States cannot maintain a pattern and

practice action because Denver applies its policy to all Classified and Career

Service employees and there is no disparity in treatment. We have rejected that

argument in part III A.2. supra. The district court correctly found that Denver’s

undisputed policy constituted “unlawful discrimination,” Teamsters, 431 U.S. at

360. With respect to Denver’s undue hardship defense, we agree with the district

court that, even viewing the evidence presented on summary judgment in the light

most favorable to Denver, no reasonable trier of fact could find reassignment
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constituted an undue hardship as a general matter. 

Finally, we decline to address the elements the United States must prove

during the remedial phase of the pattern and practice suit as that issue is beyond

the scope of this interlocutory appeal. Cf. United Transp. Union Local 1745 v.

City of Albuquerque, 178 F.3d 1109, 1114-15 (10th Cir. 1999); Homeland Stores,

Inc. v. Resolution Trust Corp., 17 F.3d 1269, 1271-72 (10th Cir. 1994). 

IV

We AFFIRM the jury verdict in favor of plaintiffs. We also AFFIRM the

district court’s denial of plaintiffs’ motion for class certification and its grant of

summary judgment in favor of Denver on plaintiffs’ equal protection claims. We

REVERSE and REMAND plaintiffs’ front pay award to the district court for

further consideration in light of this opinion. We AFFIRM the district court’s

grant of summary judgment in favor of the United States on the liability phase of

its pattern and practice suit.