United States District Court, D. Colorado
MEMORANDUM OPINION REGARDING DEFENDANT'S FOR
SUMMARY JUDGMENT AND PLAINTIFF'S REQUEST FOR LEAVE TO
B. Shaffer United States Magistrate Judge
Memorandum Opinion addresses the following motions: (1)
Defendant City and County of Denver's Motion for Summary
Judgment (doc. #37) and (2) Plaintiff David Perez's
Request for Leave of Court to Amend Complaint (doc. #45).
Both of these motions have been fully briefed. The parties
consented (doc. #22) to the magistrate judge's
jurisdiction to “conduct all further proceedings in
this civil action, including trial, and to order the entry of
a final judgment, ” pursuant to 28 U.S.C. §
636(c), Fed.R.Civ.P. 73, and D.C.COLO.LCivR 72.2.
Accordingly, the case was referred to this court on January
26, 2016. After carefully considering the parties' briefs
and attached exhibits, the entire case file, and the
applicable law, this court will grant Defendant's motion
for summary judgment and deny Plaintiff's motion for
leave to amend his Complaint.
Perez commenced this action on March 4, 2015 with the filing
of a pro se Complaint (doc. #1) that asserted claims
under the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101, et seq., and the Uniformed Services
Employment and Reemployment Act of 1994 (USERRA), 38 U.S.C.
§§ 4301-4335. Mr. Perez asserts that he had been
employed by the City and County of Denver as a full-time paid
firefighter since December 1, 2006, and that prior to his
employment with the Denver Fire Department, he served on
active duty with the United States Marine Corps for eight
years. Plaintiff states that he is still serving in the
Selected Marine Corps Reserve. In his Complaint, Mr. Perez
contends that Defendant City and County of Denver violated
ADA § 12112(d) by disclosing confidential medical
information to his co-workers. See Complaint, at
¶¶ 12, 27. Plaintiff also alleged that his
supervisor violated USERRA § 4311, which prohibits
discrimination on the basis of military service. Id.
at ¶ 32.
January 26, 2016, this court entered an Order (doc. #24)
granting in part and denying part a Motion to Dismiss (doc.
#7) filed by Defendant City and County of
Denver. On a motion to dismiss under Fed.R.Civ.P.
12(b)(6), the court is required to “view the
allegations contained in the pro se Complaint in the
light most favorable to the non-moving party.” However,
I observed that “Plaintiff's factual allegations
[in his Complaint] are barely sufficient to assert an
improper disclosure of confidential medical
Defendant's contention that Plaintiff voluntarily
disclosed his PTSD condition during the conversation with
Station 9 firefighters on August 17, 2011 is not supported by
the Complaint. Plaintiff specifically alleges in the
Complaint that prior to being made aware of the evaluation
request he never discussed his PTSD condition with DFD or the
City. Additionally, the Complaint does not allege that during
the conversation Plaintiff specifically used the term
“PTSD” or revealed his medical diagnosis.
Furthermore, the manner in which Captain Wells learned of
Plaintiff's medical condition is a question of fact not
appropriate for resolution on a motion to dismiss. Plaintiff
has sufficiently alleged that Defendant illegally disclosed
his confidential medical information in violation of the
confidentiality provision of the ADA.
See Order Regarding Defendant's Motion to
Dismiss (doc. 16) at 9 (internal citations omitted).
Accordingly, the court declined to dismiss Plaintiff's
Perez's second claim did not fair as well. Section 4311
of USERRA prohibits employment discrimination against service
members based on their military service, see 38
U.S.C. § 4311(a), and provides for a hostile work
environment cause of action analogous to the one authorized
by Title VII. See, e.g., Otero v. N.M. Corr.
Dep't, 640 F.Supp.2d 1346, 1358 (D.N.M. 2009);
Vickers v. City of Memphis, 368 F.Supp.2d 842, 845
(W.D. Tenn. 2005) (concluding that hostile work environment
claims fall under the broad interpretation of the term
“benefit”). But an adverse employment action
under USERRA imposes the same materiality requirement found
in other civil rights statutes addressing employment
discrimination. See, e.g., Crews v. City of Mt.
Vernon, 567 F.3d 860, 869 (7th Cir. 2009) (“There
is no reason to understand ‘adverse employment
action' differently in the USERRA context.”). This
court concluded that Mr. Perez had not alleged sufficient
facts to establish that Defendant discriminated against him
based on his military service, and failed to provide any
factual allegations to support a hostile work environment
claim. Therefore, I concluded that Plaintiff had not alleged
a cognizable claim for relief under USERRA.
January 25, 2016, counsel entered an appearance on behalf of
Mr. Perez. That same day, the court held a status conference
with Plaintiff's counsel in attendance. The court advised
that if Mr. Perez wished to file an amended complaint in
light of my recently vacated December 22, 2015 Order, that
pleading should be submitted by February 10, 2016. In the
absence of an amended complaint, the court directed the
parties to submit a proposed Fed.R.Civ.P. 16 scheduling order
by February 15, 2016. Plaintiff did not file an amended
complaint by the prescribed February 10, 2016 deadline.
court held a Rule 16 scheduling conference on February 18,
2016. At that time, the court set a fact discovery deadline
of June 30, 2016 and a dispositive motion deadline of
August 1, 2016. The parties' proposed scheduling order
did not request, and the court did not set, a new deadline
for moving to amend the Complaint. On June 7, 2016, the
parties filed a joint motion for a two-week extension of the
discovery deadline. I granted that motion on the same day and
extended the fact discovery deadline to July 14, 2016. On
July 26, 2016, Defendant City and County of Denver filed its
pending motion for summary judgment. On August 5, 2016,
Plaintiff's counsel filed an Unopposed Motion to Withdraw
(doc. #41) stating, in part, that “Plaintiff has
requested that he be permitted to represent himself pro
se, and has discharged counsel.” The court granted
that motion on August 8, 2016. Mr. Perez filed his Opposition to
Defendant's Motion for Summary Judgment (doc. # 44) on
August 16, 2016 and a Motion to Supplement Plaintiff's
Response to Defendant's Motion for Summary Judgment (doc.
#46) on August 22, 2016. Mr. Perez also filed a Declaration
in Support of Opposition to Defendant's Motion for
Summary Judgment (doc. #52) on September 9,
2016. The City and County of Denver filed a
Reply in Support of its Motion for Summary Judgment (doc.
#57) on September 21, 2016.
August 22, 2016, Mr. Perez filed a Request for Leave of Court
to Amend Complaint (doc. #45). Mr. Perez asserted that this
belated motion was prompted by “further
investigation” and “additional new
information” obtained since December 22, 2016.
Plaintiff indicated that he wished to “add three (3)
new claims to the Complaint: 1) violation of Plaintiff's
Civil Rights for defamation of character; 2) violation of
laws governed by the United States Department of Labor and
Plaintiffs (sic) Civil Rights for desperate (sic) treatment
due to assumed mental condition by Defendant for Hostile Work
Environment for hazing and harassment in the work place;
[and] 3) violation of the ADA for actions taken, to include a
required Fit-For-Duty evaluation because Plaintiffs (sic) is
a combat veteran.” Mr. Perez further asserted that his
proposed amended complaint would “provide additional
undisputed facts referencing” the previously dismissed
City and County of Denver filed a Response to Plaintiff's
Motion for Leave to Amend Complaint (doc. #54) on September
15, 2016. Defendant argued that Plaintiff's motion was
untimely given the February 10, 2016 deadline for amending
the Complaint and the recently filed Motion for Summary
Judgment. The City and County also noted that Mr. Perez had
been represented by counsel through the discovery period.
Defendant's Motion for Summary Judgment
City and County of Denver has moved for summary judgment on
the narrow issue of whether a Fire Department employee on
October 1, 2011 improperly disclosed Plaintiff's
confidential medical information in violation of §
12112(d) of the ADA. Defendant maintains that Captain
Wells' statement to Plaintiff's co-workers on October
1, 2011, as well as a letter sent by the Captain on August
28, 2011, did not disclose confidential medical information.
More specifically, the City and County of Denver contends
that it cannot be liable for dissemination of medical
information that Plaintiff voluntarily disclosed to
co-workers on August 17, 2011 outside the context of a
medical examination or inquiry. Defendant insists that this
undisputed fact “dooms” Plaintiff's remaining
claim for relief.
Perez argues, to the contrary, that he never explicitly
stated that he had post-traumatic stress disorder (PTSD) when
he spoke to his co-workers on August 17, 2011, and only made
statements referring to PTSD during a September 7, 2011
interview with Department officials and subsequent fitness
for duty evaluation requested by the Denver Fire Department.
As such, Mr. Perez contends that his confidential medical
information was disclosed in violation of § 12112(d).
Standard of Review
“Pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure, the court may grant summary judgment where the
[materials in the record, including] . . . depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and the . . . moving party is
entitled to judgment as a matter of law.”
Montgomery v. Board of Cty. Comm'rs, 637
F.Supp.2d 934, 939 (D. Colo. 2009) (internal quotation marks
and citations omitted); Fed.R.Civ.P. 56(a).
burden of persuasion under Rule 56 requires the moving party
to “point to those portions of the record that
demonstrate an absence of a genuine issue of material fact,
given the relevant substantive law.” Thomas v.
Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024
(10th Cir. 1992) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)). A fact is
“material” if under the substantive law it could
have an effect on the outcome of the lawsuit. E.E.O.C. v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th
Cir. 2000) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). While the moving
party bears the initial burden of showing that there is an
absence of any issues of material fact, Hicks v. City of
Watonga, 942 F.2d 737, 743 (10th Cir. 1991), the movant
need not negate the non-movant's claim. See John
Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503
(10th Cir. 1994); Universal Money Ctrs., Inc. v. Am. Tel.
& Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994).
Once the moving party points to an absence of evidence to
support the non-moving party's claim, the non-moving
party may not rest upon his pleadings, but must come forward
with specific facts showing that there is a genuine issue for
trial as to the elements essential to the non-moving
party's case. See Fed. R. Civ. P. 56(e). See
also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th
defeat a properly supported motion for summary judgment,
there must be evidence upon which the jury could reasonably
find for the plaintiff. See, e.g., Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (“Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party, there is no ‘genuine issue for
trial.'”). Conclusory allegations or mere
speculation will not create a genuine issue of material fact
necessitating trial. Dobson v. City & Cty. of
Denver, 81 F.Supp.2d 1080, 1083 (D. Colo. 1999),
aff'd, 13 F. App'x 842 (10th Cir. 2001).
Cf. Nichols v. Hurley, 921 F.2d 1101, 1113 (10th
Cir. 1990), rehearing denied (Jan. 29, 1991)
(acknowledging “conclusory allegations without specific
supporting facts have no probative value”). Similarly,
evidence that is not significantly probative and immaterial
factual disputes will not defeat a motion for summary
judgment. Ayon v. Gourley, 47 F.Supp.2d 1246, 1252
(D. Colo. 1998), aff'd, 185 F.3d 873 (10th Cir.
1999). The demonstration of “some metaphysical doubt as
to the material facts” is not sufficient to establish a
genuine issue of material fact. Forman v. Richmond Police
Dep't, 104 F.3d 950, 957 (7th Cir. 1997) (quoting
Matsushita, 475 U.S. at 586). After construing the
factual record and drawing all reasonable inferences
therefrom in the light most favorable to the non-moving
party, Kidd v. Taos Ski Valley, Inc., 88 F.3d 848,
851 (10th Cir. 1996), rehearing denied (Sep. 5,
1996), the court ultimately must determine “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.”
Anderson, 477 U.S. at 251-52. “The very
purpose of a summary judgment action is to determine whether
trial is necessary.” White v. York Int'l
Corp., 45 F.3d 357, 360 (10th Cir. 1995).
response to Defendant's written discovery, Mr. Perez
indicated that the only ADA violation he was asserting in his
Complaint concerned alleged disclosures of his medical
condition that occurred on October 1, 2011. Specifically, the
Complaint alleges that:
On October 1, 2011, Captain Randy Wells had a meeting with
firefighters at Station 9 about Mr. Perez. Mr. Perez was not
scheduled to work that day and was not present for the
meeting Captain Wells had with firefighters of Station 9. The
meeting was to discuss Mr. Perez having PTSD and get the
opinion of other firefighters with regards to Mr. Perez
having PTSD. Captain Randy Wells also informed the
firefighters that he submitted a letter with the request that
Mr. Perez be evaluated for PTSD. Captain Wells did not inform
Mr. Perez that he was having such a meeting and Mr. Perez was
only notified at home via a phone call by another firefighter
that this meeting was taking place.
See Complaint, at ¶ 27.
reviewing the parties' briefs and attached exhibits, the
court concludes that the following material facts are not in
dispute for purposes of the pending motion for summary
currently is employed by the City in the Denver Fire
Department (“DFD”) as a Firefighter. On August
17, 2011, Plaintiff was assigned to Engine Company 9, a unit
in the chain of command of Captain Randy Wells. On that day,
Plaintiff and members of Engine Company 9's B shift were
dispatched to a scene where a truck fatally struck a young
child. This was emotionally disturbing for Plaintiff because
the child was close in age to Plaintiff's son. Captain
Wells asked Plaintiff if he was okay after that call, and
Plaintiff said he was.
that same day, Plaintiff attended Emergency Medical Services
(“EMS”) training which included instruction on
the application of tourniquets in the field. The training
materials included pictures and statistics from military
combat operations in Iraq and Afghanistan. Plaintiff became
visibly upset to the point that he stood up in the middle of
training and left the room. Technician Mike Morris and
Captain Wells followed Plaintiff outside and asked if he was
okay. Plaintiff said he needed some time to let some things
out. Mr. Perez has testified that on August 17, 2011, he was
upset, tearful, and crying, and was visibly suffering from
PTSD. See Exhibit 1 (doc. #37-1) (Deposition of
David Perez, at pp. 91:7-14 and 95:12-25), attached to
on that day's events, Captain Wells asked Plaintiff if he
could perform his duties. Although Mr. Perez believed that he
could, he instead elected to go home early. Id. at
pp. 90:9-11. Captain Wells recognized that Mr. Perez wanted
his emotional reaction to the events of August 17, 2011 to
remain confidential and “that's the route we going
to go as far as [Plaintiff] crying.” See
Exhibit 1 (Deposition of Randall Wells, at 24:6-14), attached
to Plaintiff's Supplement.
leaving the firehouse, Mr. Perez decided to speak with the
members of B shift to “let them know why [he] was going
home because . . . . it was concerning to them about my
mental health.” See Exhibit 1 (doc. #37-1)
(Deposition of David Perez, pp. 90:9-15 and 93:2-11),
attached to Defendant's Motion for Summary Judgment.
Plaintiff concedes this decision to speak with his co-workers
was purely voluntary on his part. Id. at p. 91:2-6.
Although Plaintiff does not recall specifically what he said
to his co-workers, he did “[tell] them about how I was
in combat, and I lost . . . we lost five Marines in my
outfit.” Mr. Perez amplified on his remarks during his
Q. And you gave their names, didn't you?
A. Yes, I did.
Q. And you talked about the events of that day, correct?
A. Yes. And about the kid, yes.
Q. And about the kid and the tourniquet training . . .
Id. at p. 93:12-25.