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Docket Number

93-K-2263

Advocates

          Craig C. Eley,Eley & Eley, David C. Feola, Denver, CO, Marilee E. Langhoff, Englewood, CO, for plaintiffs.           J. Wallace Wortham, Jr., Asst. City Atty., Denver, CO, for defendants.

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Smart Summary

Summary of Memorandum Opinion and Order (Kane, Senior District Judge)

Factual and Procedural Background

Plaintiffs Jack L. Davoll, Deborah A. Clair and Paul L. Escobedo are former patrol officers of the Denver Police Department who sustained work‑related injuries that rendered them unable to perform the essential functions of their police positions (for example, making a forceful arrest or firing a weapon). The Department assigned the plaintiffs to temporary light duty. When eligibility for light duty expired, medical determinations were made that they could not return to full duty and were to be given limited duty assignments for an indefinite period; each plaintiff ultimately obtained occupational disability retirement from the Fire and Police Pension Association.

Plaintiffs filed suit seeking monetary damages and declaratory and injunctive relief under the Americans with Disabilities Act (42 U.S.C. §§ 12101–12213), Title VII (42 U.S.C. §§ 2000e–2000e‑17), 42 U.S.C. § 1983 and the Fourteenth Amendment (Equal Protection and Due Process). They allege defendants failed to accommodate them by providing permanent light duty positions and/or reassigning them to non‑police jobs within the City, and that defendants' actions constituted discrimination and related harms.

Procedurally, plaintiffs moved to certify the action as a class action pursuant to Federal Rule of Civil Procedure 23 and to bifurcate the trial under Rule 42(b). The District Court (Kane, Senior District Judge) denied the motion for class certification and denied the motion to bifurcate.

Legal Issues Presented

Whether plaintiffs satisfied the requirements of Federal Rule of Civil Procedure 23 to certify the proposed class, including whether the proposed class definition (which included former, present and future members of the Denver Police Department "who have or will have disabilities") was sufficiently definite and administratively ascertainable to meet Rule 23(a)(1)'s numerosity/ascertainability requirements.
Whether the Court should grant plaintiffs' motion to bifurcate the trial into two phases pursuant to Rule 42(b).

Arguments of the Parties

Plaintiffs' Arguments

Plaintiffs sought certification of a class defined as: "Former, present and future members of the Denver Police Department who have or will have disabilities; who have been or will be denied reasonable accommodation ... who have been or will be retaliated against ... who have been or will be 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 ... and constructive discharge of police officers with disabilities." (Sec. Am. Compl. & Jury Demand ¶ 34.)
Plaintiffs stated they could reasonably identify the group of police officers aggrieved by defendants' practices through June 27, 1994, but acknowledged difficulty identifying those presently subject to or who will be subject to such practices in the future.
Plaintiffs also moved to bifurcate the trial into two phases under Rule 42(b).

Defendants' Arguments

Defendants maintained the proposed class is not definable, emphasizing that the critical issue is whether defendants "have had, have or will have a duty to reasonably accommodate individuals with disabilities, and if so what is the scope of the duty to accommodate." (Memo. Law Opp. Pl.s' Mot. Class Certif. & Bifur. at 6–7.)
Defendants argued inherent difficulties in identifying who "has or will have" a disability under the ADA and in resolving such individualized inquiries for present or future class members.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Milonas v. Williams, 691 F.2d 931 (10th Cir. 1982)	Supports that whether a class may be certified lies within the discretion of the court.	Cited to establish the court's discretionary authority in ruling on class certification.
Joseph v. General Motors Corp., 109 F.R.D. 635 (D. Colo. 1986)	Limits inquiry on class certification to whether Rule 23 requirements are met and explains the need, at times, to analyze substantive claims to determine those requirements; also addresses ascertainability/administrative feasibility.	Relied upon to explain that the merits are not to be decided at certification but that some substantive analysis is often necessary to determine if Rule 23 prerequisites (including ascertainability) are satisfied.
Anderson v. City of Albuquerque, 690 F.2d 796 (10th Cir. 1982)	Establishes that the party seeking certification bears the burden of proving each Rule 23 element.	Used to state plaintiffs' burden to prove Rule 23 requirements.
Rodriguez v. Bar-S Food Co., 567 F. Supp. 1241 (D. Colo. 1983)	Addresses that a proposed class must be sufficiently defined so potential members can be identified.	Applied to support the requirement that a class description be definite enough for identification of class members.
Welsh v. City of Tulsa, Okl., 977 F.2d 1415 (10th Cir. 1992)	Holds that determination of whether a person has a disability is a case‑by‑case inquiry; denial of a single job does not establish being perceived as substantially limited.	Used to show that disability determinations require individualized inquiry and that a single job denial is insufficient to show a protected disability status.
Jasany v. United States Postal Service, 755 F.2d 1244 (6th Cir. 1985)	Provides factors relevant to whether an impairment substantially limits employment potential and states burden allocation (plaintiff must establish impairment; then burden shifts to employer).	Quoted for the list of factors relevant to a substantial limitation in employment and for the allocation of burdens in ADA/Rehabilitation Act claims.
Bolton v. Scrivner, 36 F.3d 939 (10th Cir. 1994)	Holds that a work‑related injury preventing performance of a particular job is not necessarily a substantial limitation absent evidence that it restricts a class or broad range of jobs.	Relied upon to show that job‑specific impairments do not automatically constitute an ADA disability; supports individualized assessment.
Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986)	Holds that not meeting demands of an integral part of a particular job does not necessarily mean the employee is regarded as handicapped; emphasizes particularized inquiry.	Used to underscore that ADA/Rehabilitation Act disability determinations are particularized and that minor or job‑specific limitations are insufficient to invoke protection.
Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993)	Concludes subclasses were improperly certified because determinations of handicapped or "otherwise qualified" are necessarily individualized.	Applied to support the conclusion that individualized inquiries into disability and qualification preclude certification of the proposed class.

Court's Reasoning and Analysis

The Court began by stating the governing standard: plaintiffs seeking class certification must meet Rule 23, and the court has discretion to grant certification. The court emphasized that the party seeking certification bears the burden of proving each element of Rule 23. In particular, Rule 23(a)(1) requires that a class be so numerous that joinder is impracticable, but before numerosity is assessed the class must be adequately defined so potential members can be identified; the description must be sufficiently definite to make it administratively feasible for the court to determine membership.

The court examined the plaintiffs' proposed class definition, which encompassed "former, present and future members of the Denver Police Department who have or will have disabilities" and related categories of alleged harms. The court explained the legal meaning of "disability" under the ADA (citing 42 U.S.C. §§ 12102(2), 12111(8) and related statutory material) and noted that disability determinations are necessarily individualized and decided case‑by‑case.

The opinion surveyed controlling and persuasive authority (e.g., Welsh, Bolton, Forrisi, Jasany, Chandler) to demonstrate that (1) a limitation confined to the inability to perform a particular job does not necessarily constitute a "disability" under the ADA; (2) several factors must be considered to determine whether an impairment substantially limits employment potential; and (3) determinations whether someone is disabled or "otherwise qualified" are individualized inquiries.

The Court then applied these legal principles to the record: the plaintiffs' affidavits merely alleged work‑related injuries that impaired ability to perform prior positions but did not establish that each plaintiff (or each putative class member) met the ADA definition of "disability." The Court found that the proposed class definition's inclusion of present and future persons "who have or will have disabilities" made the class insufficiently definite and administratively unworkable because determining membership would require individualized factual inquiries into whether each person met the statutory definition of disability.

Accordingly, the Court concluded the class definition was untenable. Because there was no cognizable class, the Court found it unnecessary to address the remaining Rule 23(a) or (b) requirements. The Court also denied the motion to bifurcate.

Holding and Implications

Holding: Plaintiffs' motion for class certification is DENIED; Plaintiffs' motion for trial bifurcation is also DENIED.

Implications: The immediate consequence is that the case will not proceed as a class action and no class has been certified; plaintiffs (and any putative class members) must proceed individually or by some other procedurally appropriate mechanism. The opinion rests on the conclusion that the proposed class definition was not sufficiently definite because determining ADA "disability" status requires individualized inquiries. The opinion does not announce or purport to create a new legal principle beyond applying existing statutory definitions and precedent to the facts and class definition presented.

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Jack L. DAVOLL; Deborah A. Clair; and Paul L. Escobedo; on behalf of themsel v. s and a class of persons similarly situated; Plaintiffs,

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

Before me is the motion of Plaintiffs Jack L. Davoll, Deborah A. Clair and Paul L. Escobedo to certify this action as a class action pursuant to Federal Rule of Civil Procedure 23 and to bifurcate this action into two trial phases pursuant to Rule 42(b). I deny the motion.

I. Facts and Procedural Background

Plaintiffs bring this action seeking monetary damages, declaratory and injunctive relief pursuant to: (a) the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213; (b) Title VII of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. §§ 2000e through 2000e-17); (c) 42 U.S.C. § 1983 and the Equal Protection and Due Process clauses of the U.S. Constitution as applied to Defendants through the Fourteenth Amendment to the U.S. Constitution. (Sec.Am.Compl. & Jury Demand ¶ 1.)

Plaintiffs were patrol officers for the Denver Police Department who sustained work-related injuries which rendered them unable to perform the essential functions of their jobs as police officers, i.e. the ability to make a forceful arrest and/or fire a weapon. The Denver Police Department assigned each of the Plaintiffs to temporary light duty positions.

When each Plaintiff's eligibility for light duty expired, a medical determination was made that he or she could not return to full duty and was to be given a limited duty assignment for an indefinite period of time. Each Plaintiff sought and was granted occupational disability retirement from the Fire and Police Pension Association.

In essence Plaintiffs allege Defendants have failed to accommodate them by providing permanent light duty positions and/or failing to reassign them to non-police jobs within the City. As a result, Plaintiffs seek recovery for personal injury and economic losses as well as injunctive and declaratory relief.

II. Class Certification

A. General Principles

Plaintiffs must satisfy the requirements of Rule 23 in order to maintain a class action. Whether a class may be certified is in the discretion of the court. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1524, 75 L.Ed.2d 947 (1983). In ruling on a motion for class certification, inquiry is limited to whether the requirements of Rule 23 have been satisfied. The merits of the action are not judged. Joseph v. General Motors Corp., 109 F.R.D. 635, 637 (D.Colo.1986). On the other hand, in determining whether the requirements of Rule 23 have been met, " it is often necessary to analyze the substantive claims and defenses of the parties and the essential elements of those claims and defenses.... Nevertheless, there is a distinction between identifying the issues that the case will present for purposes of determining whether the requirements of Rule 23 have been met and deciding those issues on the merits." Id. at 637-38.

The party seeking certification of the class has the burden of proving each of the requisite elements of Rule 23. Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir.1982). First, Plaintiffs must establish that the four requirements of Fed.R.Civ.P. 23(a) are satisfied, namely (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. These requirements are often referred to as numerosity, commonality, typicality, and adequacy of representation. Second, Plaintiffs must establish that the case fits within one of the three subcategories of Rule 23(b).

B. Application

Rule 23(a)(1) provides that a class action may be maintained only if " the class is so numerous that joinder of all members is impracticable." To satisfy the requirements of Rule 23(a), Plaintiffs must first adequately define the class and then establish that it is so numerous that joinder of all members is impracticable.

In determining whether the proposed class meets Rule 23(a)'s numerosity requirement, one must first determine whether the class is sufficiently defined so that potential class members can be identified. Joseph, 109 F.R.D. at 638; see also Rodriguez v. Bar-S Food Co., 567 F.Supp. 1241, 1247 (D.Colo.1983). However, the class does not have to be so ascertainable that every potential member can be identified at the commencement of the action. Joseph, 109 F.R.D. at 639. Nevertheless, the requirement that there be a class is not satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member. Id.

Plaintiffs propose the following definition for the class:

Former, 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; who have been or will be retaliated against for assertion of ADA rights or opposition to discriminatory practices; who have been or will be 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 of law through defendants' unequal implementation of the ADA in defendants' workforce and ongoing disparate treatment of police officers with disabilities and constructive discharge of police officers with disabilities.

(Sec.Am.Compl. & Jury Demand ¶ 34.)

Plaintiffs state they can reasonably identify the group of police officers who have been aggrieved by Defendants' practices through June 27, 1994, but not those who are presently subject to such practices or will be in the future.

Defendants maintain the proposed class is not definable. They state the defining issue is " whether defendants have had, have or will have a duty to reasonably accommodate individuals with disabilities, and if so what is the scope of the duty to accommodate." (Memo.Law Opp.Pl.s' Mot.Class Certif. & Trial Bifur. at 6-7.)

The term " disabilities" in the proposed class definition refers to the term " disability" as found in the ADA which prohibits discrimination " against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). A " qualified individual with a disability" is defined as an " individual with a disability who, with or without reasonable accommodation, can perform the essential function of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The ADA defines " disability" as " (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). This definition is substantially the same as that of an " individual with handicaps" (now an " individual with a disability" ) contained in the Rehabilitation Act of 1973, 29 U.S.C. § 706(8)(B). The legislative history of the ADA reflects that " Congress intended the relevant caselaw developed under the Rehabilitation Act may be generally applicable to the term ‘ disability’ as used in the ADA." H.R.Rep. No. 485, Part 3, 101st Cong., 2d Sess. 50 (1990), reprinted in 1990 U.S. S.C.C.A.N. 267. See also 42 U.S.C. § 12117(b). Thus only those persons with a " disability" as defined in the ADA may state a claim under the act.

The Rehabilitation Act, 29 U.S.C. § 706(8)(B), defines an " individual with a disability," originally termed an " individual with handicaps," as a person " who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."

The determination of whether a person has such disability is to be decided on a case-by-case basis. Welsh v. City of Tulsa, Okl., 977 F.2d 1415, 1417 (10th Cir.1992). Welsh had been denied employment as a firefighter with the City due to a minor residual sensory deficit in the ring and little fingers of his right hand. He claimed he was discriminated against on the basis of handicap protected by the Rehabilitation Act of 1973. The Tenth Circuit affirmed that " denial of a single job in a single field due to a physical condition does not establish that a person is perceived as having an impairment that substantially limits a life activity." Id. at 1417.

Several factors are relevant to determining whether an impairment substantially limits an individual's employment potential. They include " (1) the number and type of jobs from which the impaired individual is disqualified, (2) the geographical area to which the individual has reasonable access, and (3) the individual's job expectations and training."

Id. at 1419 (citing Jasany v. United States Postal Service, 755 F.2d 1244, 1249 (6th Cir.1985)) (numbering added).

In Bolton v. Scrivner, 36 F.3d 939, 944 (10th Cir.1994), the court held a work-related injury preventing an employee from performing his job as order selector in a grocery warehouse was not a substantial limitation in his major life activity of working, as required for an unlawful discharge claim under the ADA, absent evidence showing a significant restriction in ability to perform a class of jobs or broad range of jobs in various classes.

In Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir.1986), the court held an employer who discharged an employee with acrophobia (fear of heights) because he could not climb ladders or stairs to certain heights, did not regard the employee as handicapped simply because he did not meet the demands of an integral part of his particular job. The court's comments emphasize the particularized definition of " disabled" in the Rehabilitation Act, and by derivation, in the ADA:

The Rehabilitation Act assures that truly disabled, but genuinely capable, individuals will not face discrimination in employment because of stereotypes about the insurmountability of their handicaps. It would debase this high purpose if the statutory purpose available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for employment.

Id. at 934.

In Jasany v. United States Postal Service, 755 F.2d 1244, 1250 (6th Cir.1985), the court held that, as a matter of law, an employee with strabismus (" crossed eyes" ) was not regarded as handicapped when he was fired from a position which his strabismus prevented him from properly performing. Again the court recognized the individualized nature of the inquiry into whether a disability exists:

The burden is on the plaintiff to establish the existence of an impairment that substantially limits a major life activity as an element of the plaintiff's prima facie case. Once a prima facie case has been presented, the burden shifts to the defendant employer to demonstrate that challenged criteria are job related and required by business necessity, and that reasonable accommodation is not possible.

Id. at 1249-50 (footnote omitted).

In Chandler v. City of Dallas, the court held two subclasses of plaintiffs (those with substandard vision and those with insulin dependent diabetes) had been improperly certified because " the determinations of whether an individual is handicapped or ‘ otherwise qualified’ are necessarily individualized inquiries." 2 F.3d 1385, 1396 (5th Cir.1993).

In the case at bar, the affidavit of each named Plaintiff merely alleges he or she suffered work-related injuries which impaired the ability to work at a previously held position but not to perform the essential functions of other positions within the police department. ( Pl.s' Mot.Class Certif. & Bifur.Trial, Ex. A, ¶ 2; Id., Ex. B, ¶ 2; Id., Ex. C, ¶ 2.) It does not follow per se that any of these individuals falls within the definition of having an ADA " disability."

The mere fact that each Plaintiff sustained work-related injuries resulting in physical impairments, being placed in a light duty position and later retiring would not mean he or she had a " disability" as defined in the ADA. Various factors would have to be considered in determining whether each named Plaintiff and each member of the putative class has or will have a " disability" for the purposes of an ADA claim. Such " necessarily individualized inquiries" are best suited to a case-by-case determination. Chandler, 2 F.3d at 1396.

Because Plaintiffs' definition of the proposed class is untenable, class certification is inappropriate in the instant case. Absent a cognizable class, determining whether Plaintiffs or the putative class satisfy the other Rule 23(a) and (b) requirements is unnecessary.

III. Conclusion

Plaintiffs' motion for class certification is DENIED; so, too, is Plaintiffs' motion for trial bifurcation.

Davoll v. Webb