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Nguyen v. City and County of Denver

United States District Court, D. Colorado

December 21, 2017

JAMES NGUYEN, Plaintiff,


          BABCOCK, J.

         Plaintiff James Nguyen brought this case against the City and County of Denver, Colorado (“Denver”), alleging employment discrimination under the Americans with Disabilities Act, 42 U.S.C.A. § 12101 et. seq. (the “ADA”) and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Denver moved for summary judgment, arguing that Officer Nguyen cannot not demonstrate he was qualified to be a Denver Police Department (“DPD”) officer, even with reasonable accommodation, that Denver reasonably accommodated him, and that he was not terminated because of his disability. (ECF No. 37.) As I describe below, there are genuine issues of material fact at least as to whether Officer Nguyen, who is hearing-impaired, was qualified, with accommodation, to be a DPD officer, whether he adequately requested accommodation, and whether Denver reasonably accommodated him. I accordingly DENY Denver's motion for summary judgment.

         I. BACKGROUND

         Except where disputes are noted, the record establishes the following facts when viewed in the light most favorable to Officer Nguyen. See Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005).

         Officer Nguyen has had bilateral conductive hearing loss since birth. He worked part-time (between 30-36 hours a week, on average) as a police officer at Lakeside Police Department from June 2010 to April 2013. According to Officer Nguyen, most of his calls and training at the Lakeside Police Department concerned traffic accidents, medical assists, traffic enforcement, and “assist other agencies.” (Nguyen Dep. at 69:21-70:11, ECF No. 37-1.) The Lakeside Police Department provided Officer Nguyen with an earpiece that wirelessly connected to his police radio through a FreeLinc transmitter/receiver (like a Bluetooth device). The FreeLinc device dramatically increased his ability to hear radio communications. (D. Montgomery Report at 8-9, ECF No. 51-2.)

         Denver knew of Officer Nguyen's impairment when it hired him as a police officer recruit in 2013, in part because he was examined by an audiologist as part of his pre-employment medical examination. (Pre-Employment Medical Agreement and Hearing Evaluation at 1-2, ECF No. 51-21.) Denver's Civil Service Commission was told that Officer Nguyen had a “history of hearing loss and wears hearing aids. He does not meet the Med Tox criteria for hearing without his hearing aids.” (Id. at 2.) Officer Nguyen also signed a Pre-Employment Medical Agreement that described his “medical condition of bi-lateral hearing loss” and his use of hearing aids. (Id. at 3.) Officer Nguyen acknowledged that “the Conditions of Employment listed herein . . . are being offered me by the Denver Department of Safety as an accommodation for my medical condition of bi-lateral hearing loss. The accommodation is being offered to help ensure that I am able to perform the essential functions” of a DPD officer. (Id.) Despite the language referencing “accommodation for my medical condition, ” the document did not actually include any accommodations for his hearing disability; rather, it listed conditions required to obtain employment. (Id. at 4.) One of the conditions required him to wear his hearing aids, and another required him to provide Denver with full access to any medical records related to his hearing. (Id.)

         From April to October 2013, Officer Nguyen participated in the DPD Academy. Toward the end of the Academy, Officer Nguyen asked a Denver employee about getting a FreeLinc or Bluetooth device that wirelessly connects his hearing aid to the police radio and was told to wait until the field training program, when recruits begin to use the radio. (Nguyen Dep. at 113:1-116:10.) However, when he was issued his radio at the end of the Academy, he was not provided with a FreeLinc or Bluetooth device. (Id. at 116:14-19.)

         After successfully graduating from the Academy, Officer Nguyen started the four-phase field training program. Throughout the field training program, Officer Nguyen's trainers reported that his hearing impairment negatively impacted his performance:

• On November 29, 2013, Corporal Kevin Ford, Officer Nguyen's phase one field training officer, concluded in his Daily Observation Report (a report created after each day of training) that “Nguyen's hearing is creating a significant risk to the safety of both R/O Nguyen and other officers. R/O Nguyen has a very hard time hearing many sounds that would lead him to a potential suspects or a crime in progress. (11/29/2013 Daily Observation Report, ECF No. 37-6).
• Officer Nguyen's phase two training officer, Corporal Greg Juarez, reported that “his hearing could be a potential officer safety hazard and it could affect his performance in various categories.” (12/09/2013 Daily Observation Report at 1, ECF No. 37-12.)
• Corporal Scott Day, Officer Nguyen's phase three training officer, wrote that “Officer Nguyen repeatedly demonstrated that he has difficulty hearing radio transmissions and understanding the information provided by dispatch and other officers.” (End of Phase Three Report at 4, ECF No. 37-10). He explained that “Officer Nguyen has a documented hearing disability, and suffers from permanent hearing loss in both ears. Officer Nguyen utilizes hearing aids for this issue, but is still incapable of reliably hearing moderate volume conversation even at normal conversational distances.” (Id.)
• In his end-of-phase-four report, Corporal Ford reported that Officer Nguyen once let a suspect reach into his coat because he was looking at the suspect's face and trying to communicate with him. (End of Phase Four Report at 5, ECF No. 37-11.) Corporal Ford also reported that Officer Nguyen interviewed a sexual assault victim who was upset, looking down, and crying, but speaking loudly. (Id. at 9.) Officer Nguyen asked her to repeat most statements three to four times, telling her to look at him so he could read her lips. (Id.) The victim became even more upset, requiring Corporal Ford, who was ten feet from her and had no problem hearing her, to take over the interview. (Id. at 9-10.)
• Sergeant Knutson (the field training coordinator at the Academy) concluded that “the root of almost all of Nguyen's significantly poor performance revolves around his hearing loss.” (Dec. 18, 2013 Email from Knutson to Archer, ECF No. 51-23.) He explained that “[t]here are some serious officer safety risks that have been documented due to his hearing loss.” (Id.)

         While not as uniform, Officer Nguyen's trainers also reported performance issues that were unrelated to his hearing disability, including issues related to report-writing and orientation while driving. Notably, at the end of phase four, Corporal Ford concluded that Officer Nguyen had significant weaknesses in both these areas. (End of Phase Four Report at 3-5, ECF No. 37-11.) Corporal Ford also concluded that he had a significant weakness in officer safety-for example, he failed to pat down suspects for weapons on several occasions. (Id. at 9.)

         During the field training phase, Officer Nguyen repeatedly discussed his hearing issues with his training officers, but Denver did not initiate its formal interactive process, which is designed to identify potential accommodations for disabled employees:

[T]he purpose of the [formal interactive process] is to explore whether you are able to perform the essential functions of your position; whether you are a qualified individual with a disability within the definitions of the Americans with Disabilities Act of 1980 (ADA), as amended; and, if so, whether any reasonable accommodations are available help you perform the essential functions of your position.

(April 22, 2014 Letter to Officer Nguyen, ECF No. 37-23.) For example, in phase one, Officer Nguyen told Corporal Ford that the FreeLinc device he had used at Lakeside had helped him with using the radio. Corporal Ford did not offer to provide a similar accommodation to Officer Nguyen or take steps to start the formal interactive process, but he did encourage him to bring in an earpiece for his next shift. (Nguyen Dep. at 136:18-139:2, ECF No. 37-1.) Officer Nguyen purchased a device that connected with the radio through a wire, which did not work as well as the FreeLinc device that Lakeside had provided. (Id. at 120:11-13, 121:3-122:21, ECF No. 37-1.) Officer Nguyen did not offer any suggestions for further addressing his hearing impairment, but he did ask Corporal Ford if he had any suggestions. Corporal Ford did not have any. (Id. at 167:10-21, 170:3-7.) Officer Nguyen later testified he felt that Corporal Ford discriminated against him because of his disability, was reluctant to train him, and didn't answer his questions. (Id. at 160:15-161:5.)

         In phase two, Officer Nguyen and Corporal Juarez discussed his hearing aids and his hearing impairment, but once again, Denver did not initiate the formal interactive process. Corporal Juarez asked Officer Nguyen how his hearing aids were working and when he bought them. (12/09/2013 Daily Observation Report at 1, ECF No. 37-12.) Officer Nguyen told him that he bought the hearing aids about six months earlier and that they were “the best fit for [his] ear mold.” (Nguyen Dep. at 177:15-28, ECF No. 37-1.) Corporal Juarez said he should speak to a different doctor and “get a second opinion on what hearing device aid he should be using.” (Id. at 179:6-15.) Officer Nguyen understood that to mean that his hearing was a serious problem. (Nguyen Dep. at 179:19-23, ECF No. 37-1.) At one point, Officer Nguyen commented to Corporal Juarez that, “it feels like you're looking at my disability as a weakness.” (Id. at 193:11-12.)

         On December 14, 2013, Officer Nguyen told Corporal Juarez he had an appointment for a second opinion on January 15, 2014. (Id. at 180:24-181:11). He saw his otologist, Dr. Feehs, on January 15, 2014, to discuss possible surgical options because he believed that Corporal Juarez wanted him to explore surgical intervention. (Id. at 182:20-183:13.) Dr. Feehs charted that Officer Nguyen “would look into the option of a new hearing aid first and call to schedule [a possible surgery], if desired.” (Id. at 184:1-10.) Dr. Feehs also referred him to an audiologist in his practice, Ashley Huerta, to discuss new hearing aids. (Id. at 185:18-25.)

         That same day, Officer Nguyen saw an audiology student extern at Dr. Feehs's office, who charted that she explained to Officer Nguyen that “a higher tech level [would] provide more benefit.” (Huerta Dep. at 16:21-22, 19:10-13, ECF No. 51-3.) However, Officer Nguyen's audiologist, Dr. Ashley Huerta, testified that she believed the extern's recommendation was incorrect because, based on the nature of Officer Nguyen's hearing loss, he needed stronger hearing aids, not more advanced technology. (Id. at 20:1-13.) The student also charted that Officer Nguyen did not want behind-the-ear style hearing aids because he was in law enforcement. (Id. at 19:9-20.) Notably, the higher-tech hearing aids did not need to be behind-the-ear. (Id. at 21:14-7.) Officer Nguyen did not see Dr. Huerta during this appointment, but he did schedule an appointment to see her later. (Nguyen Dep. at 188:2-22, ECF No. 37-1.)

         After the appointments with Dr. Feehs and the student extern, Officer Nguyen explained to Corporal Day, his phase three training officer, that “surgery was a risk for [him] so [he] didn't think [he] wanted to go through with that.” (Nguyen Dep. at 189:12-16, ECF No. 37-1.) He also told Corporal Juarez that he needed to research which hearing aids would be better for him, so he wasn't going to make any immediate modifications. (Id. at 189:17-24.)

         At the end of the four-phase field training program, Corporal Ford recommended placing Officer Nguyen in a remedial training phase before advancing to policing without a training officer. Officer Nguyen met with Corporal Ford, his FTO training supervisor, Sergeant Heimbigner, and others on February 7, 2014, to review the remedial training plan. (Nguyen Dep. at 194:5-22, ECF No. 37-1.) The main focus of the meeting was Officer Nguyen's hearing disability, but the remedial training plan focused both on report writing and radio listening and comprehension. (Supervisor's Situation Report, ECF No. 51-4.) Officer Nguyen was informed that even if he successfully completed remedial training, a plan would be developed “to monitor his performance to ensure that his hearing deficiency [was] not impacting his ability to safely complete the job of patrol officer.” (Id.) The written remedial training plan for Officer Nguyen stated:

Recruit Officer Nguyen often fails to hear or comprehend radio transmissions. Hearing related concerns remained constant throughout all four phases of training. . . .
Recruit Officer Nguyen's hearing impairment . . . bleeds over into the area of effectively listening and communicating with other officers and citizens. It is important to note the following observations from Corporal Day from Phase Three when evaluating the likelihood of training being able to correct this deficiency. . . . “[T]here are still substantial concerns about Officer Nguyen's hearing disability, which prevents him from reliably hearing spoken voices at normal conversational volumes. . . . It does not appear that any amount of training or instruction is likely to have an impact on the natural medical impairment of Officer Nguyen's hearing.”

(2/5/2014 Remedial Training Plan at 1-2, ECF No. 37-15.) The training plan also addressed issues with Officer Nguyen's report-writing, concluding that he “has been unable to demonstrate on a consistent basis that he can identify the proper forms to complete on a call and finish the report in an acceptable amount of time with a reasonable number of errors that do not impact the overall quality of the report.” (Id. at 1.) The remedial training plan was supposed to last two weeks, from February 9, 2014, through February 22, 2014, with the option to extend it for another two weeks “if there is a lack of progress.” (Id. at 1.)

         However, after one week of remedial training, Lieutenant Barb Archer told Sergeant Heimbigner to stop the remedial training and circulate a letter recommending Officer Nguyen's termination. On February 17, 2014, Sgt. Heimbigner wrote a memorandum to Chief Robert White recommending Officer Nguyen's termination from the classified service (i.e., from employment as a police officer) for failure to meet his probationary requirements. (2/17/2014 Inter-Department Correspondence, ECF No. 37-17.) The letter incorrectly stated that “[a] second opinion from an audiologist confirmed that Officer Nguyen's hearing aids were the best available for his condition and there were no other aids that could improve his hearing.” (Id. at 11.) Sergeant Heimbigner concluded:

This leads me to believe that no amount of training or remedial efforts will bring Officer Nguyen up to an acceptable level of performance. The inability to hear effectively is a contributing factor to the safety of Officer Nguyen, other police officers and the general public. Officer Nguyen's hearing disability has identified a variety of situations that pose risk in many different forms. . . . Placing Officer Nguyen in a solo capacity as a patrol officer would pose an unacceptable and unnecessary risk to the Denver Police Department and the citizens of Denver. There are limited compensating behaviors that can be effectively utilized because without acceptable hearing most forms of communicating frequently used by police officers will always suffer. . . . Continuing Officer Nguyen in the field training and evaluation program would not result in a change in performance since the problem cannot be corrected medically or through training.

(Id.) The recommendation also documented Officer Nguyen's other problems throughout training, like report-writing. (Id.) Sergeant Heimbigner did not speak with Officer Nguyen regarding the termination recommendation. Officer Nguyen's District Commander, Commander Nagle, approved the recommendation February 18, as did Lieutenant Archer on February 19. (Id. at 12.)

         On February 19, 2014, Chief of Police Robert White issued an order prohibiting Officer Nguyen from taking police action and assigning him to his residence during work hours. (11/19/20 Inter-Department Correspondence, ECF No. 37-19). That same day, Officer Nguyen met with Deputy Chief Quinones and other DPD employees. (Nguyen Dep. at 213:8-18., ECF No. 37-1.) During the meeting, Deputy Chief Quinones told Officer Nguyen that at least in part because of his hearing deficiency, he would no longer progress in the training phase. (Id. at 203:22-25, 204:13-16; see also Quinones Dep. at 51:24-52:1, ECF No. 58-1.) Also in February, Deputy Chief Quinones recommended terminating Officer Nguyen to Manager of Safety Stephanie O'Malley, who had sole authority to terminate Officer Nguyen. Director O'Malley testified that she probably approved the termination in February. (O'Malley Dep. at 7:1-2, 62:5-13, ECF No. 51-15.) She also said that “if somebody's terminated, that means they're terminated.” (Id. at 68:5-6.)

         On February 21, 2014, Chief White issued another order to Officer Nguyen, stating that “until further notice” Officer Nguyen had “no police authority, ” was on “personal leave . . . under the direction of Safety Human Resources, ” and was to “begin the interactive process with the city.” (11/21/2014 Inter-Department Correspondence, ECF No. 59-1.)

         Human resources professional Suzanne Iversen then sent Officer Nguyen a letter describing Denver's interactive process and asking him to submit a reasonable accommodation questionnaire to his medical provider. (2/24/2014 Letter re: Interactive Process/ADA, ECF No. 37-20.) The questionnaire instructed Officer Nguyen's doctor “to provide information regarding . . . whether [Officer Nguyen] has a physical or mental impairment that substantially limits one or more major life activities, including any functional limitations or major bodily functions with limitations associated with such impairment(s), ” as well as “the impact [of Officer Nguyen's] medical condition on his/her ability to work and suggested accommodations that would enable [him] to perform the essential functions of his . . . position.” (2/21/2014 Letter to Heath Care Provider at 1, ECF No. 37-22.) Officer Nguyen met with Dr. Feehs on March 27, 2014, and Dr. Feehs completed and signed the questionnaire. (Reasonable Accommodation Questionnaire at 4, ECF No. 37-22.)

         On April 2, 2014, Dr. Feehs's office sent the completed questionnaire to Wilma Springer, DPD's ADA coordinator. Despite reporting that Officer Nguyen had “bilateral severe conductive hearing loss, ” Dr. Feehs also indicated that Officer Nguyen was not substantially limited in any major life activity and could work with no restrictions. (Reasonable Accommodation Questionnaire at 1-2, ECF No. 37-22.) However, Dr. Feehs did not realize he was supposed to indicate whether Officer Nguyen's hearing loss was substantially limiting. (Feehs Dep. at 70:13-21, ECF No. 51-10.) Instead, he understood the questionnaire to ask whether Officer Nguyen's hearing loss substantially limited any other major bodily functions because he assumed “we all understood [Officer Nguyen] had hearing loss.” (Id. at 70:23-25.)

         In response to what corrective measures Officer Nguyen was pursuing, Dr. Feehs wrote, “patient is to try new, stronger hearing aids.” (Reasonable Accommodation Questionnaire at 2, ECF No. 37-22.) In the accommodation section, Dr. Feehs wrote “Bluetooth technology for connecting with his hearing aids.” (Id. at 4.)

         Officer Nguyen asked Ms. Springer a few questions about Dr. Freeh's responses to the questionnaire. He asked, “if the doctor recommended stronger hearing aids and/or Bluetooth device or something that helped [him] out in the past, what would happen next?” (Nguyen Dep. at 232:2-9, ECF No 37-1.) Ms. Springer responded that Denver would put him “back into work” if that was the case. (Id. at 232:20-21.)

         Officer Nguyen saw Dr. Huerta on April 2, 2014, for a hearing aid evaluation. He ordered new, stronger hearing aids. (Huerta Dep. at 32:8-14, ECF No. 51-3.) The new hearing aids were the “behind the ear” style Officer Nguyen had not wanted before because he feared it would impair his ability to act as a police officer. (Id. at 27:7-15; 31:18-32:15, ECF No. 37-13; Nguyen Dep. at 262:6-264:15, ECF No. 37-41.) Dr. Huerta testified that with his new hearing aids, “the odds are in . . . favor that he would have close to normal hearing.” (Huerta Dep. at 91:3-11, ECF No. 51-3.) She could not say exactly how much improvement Officer Nguyen received from his new aid compared to his old one and she could not “quantify . . . how much [his hearing] improved, ” but she could presume his hearing was better because “based on hearing aid capabilities . . . he had access to more sound.” (Id. at 93:7-10, 70:7-21.)

         On April 22, 2014, Ms. Springer sent Officer Nguyen a letter ending the interactive process, and Officer Nguyen was terminated the next day for failing to perform the essential duties of a police officer. (4/23/2014 Letter, ECF No. 37-25.) The parties dispute why the interactive process ended. Denver contends the process was terminated because Dr. Freeh indicated Officer Nguyen was not substantially limited in any major life activity and could work with no restrictions. (Mot. Summary Judgm't at 11, ECF No. 37.) To support its position, Denver points to Ms. Springer's letter ending the interactive process, which explained that “[s]ince your physician did not impose any restrictions on your ability to work, I am ending the interactive process.” (See 2/2/2014 Letter re: IAP Conclusion Letter, ECF No. 37-23.)

         Officer Nguyen contends the interactive process really ended after Officer Nguyen's supervisors and the Safety Human Resources Department decided that Officer Nguyen was not returning to work as a police officer, regardless of Dr. Feehs's responses. (Response at 15, ECF No. 50.) In support of his position, Officer Nguyen points to several emails from various Denver employees. For instance, on April 4, 2014, Ms. Springer emailed Ms. Iversen and told her she had received Dr. Freeh's questionnaire, and Dr. Freeh said that Officer Nyguen could return to work without restrictions. (April 2014 Email String at 2, ECF No. 51-12.) She wrote that Dr. Freeh was “recommending [Officer Nguyen] try new stronger hearing aids, [and] blue tooth technology connecting to his hearing aids.” (Id. at 3.) Ms. Springer also wrote that Officer Nguyen was “in the process [of] scheduling his appointment for the ear mold and ordering the hearing aids. . . . With the purchase he will have a 45-day trial. I recommend he is assessed during this time to ensure he can perform the essential functions of his job, Police Officer.” (Id.) Ms. Springer wrote at ...

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