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Perez v. Denver Fire Department City and County of Denver

United States District Court, D. Colorado

December 22, 2015

DAVID PEREZ, Plaintiff,


Craig B. Shaffer United States Magistrate Judge

Magistrate Judge Shaffer

This matter comes before the court on a Motion to Dismiss (Doc. 7) filed on July 23, 2015, by Defendant City and County of Denver (the “City”). Pursuant to the Order of Reference dated March 4, 2015, this civil action was referred to the Magistrate Judge. This court has carefully considered the motion and related briefing, the entire case file, and applicable case law. For the following reasons, the court grants in part and denies in part the motion.


David Perez (“Plaintiff”), appearing pro se, brings this action pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12102 et seq., and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4311. The action arises out of Mr. Perez’s employment with the Denver Fire Department (“DFD”). Plaintiff seeks a declaratory judgment, as well as compensatory and consequential damages.

Plaintiff has been employed by the City as a full-time paid firefighter since December 1, 2006. Id. at ¶¶ 14, 34. Prior to Plaintiff’s employment with DFD, he served 8 years on active duty with the United States Marine Corps. Id. at ¶ 13. Plaintiff is currently in his third year of service in the Selected Marine Corps Reserve (the “Reserves”). Id.

On August 17, 2011, Plaintiff was assigned to Engine Company 9 at Denver Fire Station 9 (“Station 9”), under the supervision of Captain Randy Wells. Id. at ¶ 15. Plaintiff and his crew were dispatched in response to a truck fatally running over a young child. Id. After the call, Captain Wells asked Plaintiff if he was okay and Plaintiff said he was. Id.

Later that day, Engine Company 9 attended an EMS training on the application of tourniquets in the field. Id. at ¶ 16. The training materials included pictures and statistics from military combat operations in Iraq and Afghanistan. Id. During the training, Plaintiff became visibly upset and left the room. Id. at ¶ 17. Firefighter Mike Morris and Captain Wells followed Plaintiff outside and asked if he was okay. Id. Plaintiff said he was but “just needed some time to let things out.” Id. After the training, Captain Wells and Lieutenant Bob Miller approached Plaintiff to discuss his ability to perform his duties considering the day’s events. Id. at ¶ 19. Plaintiff decided to go home for the remainder of his shift but first met with the crew of Engine 9 and Truck 9 to explain that he had been upset earlier that day because of the “loss of his fellow Marines during his combat tours and how the combination of the day’s events made him emotional and brought back those memories.” Id. at ¶ 20.

On August 28, 2011, Captain Wells wrote a letter without Plaintiff’s knowledge to Assistant Chief Daniel Garcia requesting that Plaintiff be evaluated for Post-Traumatic Stress Disorder (“PTSD”). Id. at ¶ 22. Prior to this request, Plaintiff had “never disclosed to the DFD or the City that he was scene [sic], evaluated, diagnosed and/or treated for PTSD by the Veterans Administration [sic] (VA) or any other medical authority.” Id. On September 7, 2011, DFD Administration contacted Plaintiff regarding the request for evaluation. Id. at ¶ 24. At that time, Plaintiff disclosed to Administration Chief Tony Berumen that he was “seeking therapy treatment through the [VA] and that an additional evaluation was not needed.” Id. at ¶ 25. On September 28-29, 2011, Plaintiff underwent a “Fit-For-Duty” evaluation which determined that he was “fit for duty with considerations.” Id. at ¶ 26. On October 1, 2011, a day which Plaintiff was not scheduled to work, Captain Wells convened a meeting with the firefighters at Station 9 allegedly “to discuss [Plaintiff] having PTSD and get the opinion of other firefighters in regards to [Plaintiff] having PTSD.” Id. ¶ 27. Plaintiff further claims that Captain Wells informed the firefighters at that meeting that he had submitted a letter requesting Plaintiff be evaluated for PTSD. Id.

Plaintiff accepted an administrative transfer from Engine Company 9 to the Fire Prevention Division where he worked as a Hazards Material Inspector from October 10, 2011 to April 13, 2012. Id. at ¶¶ 28-29. On December 2, 2011, Plaintiff intended but ultimately reconsidered resigning from his job because he “felt he was wronged with all the actions that took place when he was assigned to Engine Company 9 and [he] didn’t want to find himself in that kind of environment again.” Id. at ¶ 29.

On April 16, 2012, Plaintiff started a new assignment at Engine Company 23, headed by Captain Derek Warlum and with Lieutenant Scott Reeves as his direct supervisor. Id. at ¶ 31. On February 20, 2013, Administration Chief Tony Berumen wrote an Internal Correspondence letter to Plaintiff that concerned information provided by Captain Warlum regarding Plaintiff’s “comments about special favors being made by DFD Administration and his need for leave during his [Reserve] military training for 5 months.” Id. at ¶ 32. Plaintiff responded in a subsequent Internal Correspondence letter by “[discrediting] the accusations made in the initial letter.” Id. After Plaintiff disputed the allegations, he learned of a conversation between Lieutenant Reeves and Captain Warlum in which they “questioned [Plaintiff’s] position as a firefighter and had stated ‘what does he want to do, be a firefighter or be a reservist.’” Id. at ¶ 33. Plaintiff subsequently requested a transfer to Engine Company 12, where he is currently assigned. Id. at ¶ 34.

In the Complaint, Plaintiff contends that Defendant violated ADA § 102(d), 42 U.S.C. § 12112(d), by disclosing confidential medical information concerning his PTSD condition during a meeting with Station 9 firefighters convened two days after Plaintiff completed a “Fit-for-Duty” evaluation. (Doc. 1 at ¶¶ 12, 27). Plaintiff also alleges that his supervisor’s comment, “what does he want to do, be a firefighter or be a reservist, ” violated USERRA § 4311, which prohibits discrimination on the basis of military service. Id. at ¶ 32. In its Motion to Dismiss, Defendant argues that DFD communicated medical information that Plaintiff voluntarily disclosed outside the context of an employment-related medical examination or inquiry, thus shielding the City from liability under ADA §102(d). (Doc. 7 at 4). Defendant further argues that Plaintiff’s USERRA claim should be dismissed because Plaintiff fails to allege an adverse employment action in the Complaint, maintaining that “a single remark related to Plaintiff’s military service is not an adverse employment action as contemplated by USERRA.” Id. at 8. Similarly, Defendant argues that Plaintiff fails to allege a hostile work environment claim because “a single remark from a single person in command staff” does not meet the severity or pervasiveness standard. Id.


Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, ...

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