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Perez v. Denver Fire Department

United States District Court, D. Colorado

March 20, 2017

DAVID PEREZ, Plaintiff,


          Craig B. Shaffer United States Magistrate Judge

         This 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.


         Mr. 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.

         On 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.[1] 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 information.”

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 ADA claim.

         Mr. 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.

         On 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.

         The 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[2] 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.[3] 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.[4] The City and County of Denver filed a Reply in Support of its Motion for Summary Judgment (doc. #57) on September 21, 2016.

         Also on 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 USERAA claim.

         The 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.


         A. Defendant's Motion for Summary Judgment

         Defendant 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.[5] 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.

         Mr. 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).

         1. 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).

         The 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 Cir. 2010).

         To 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).

         2. Undisputed Facts

         In his 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.

         After 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 judgment.[6]

         Plaintiff 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.

         Later 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 Defendant's Motion.

         Based 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.[7] 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.

         Before 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 deposition.

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 . . .
A. Yes.

Id. at p. 93:12-25.

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