Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Stephen G. Montoya MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Craig Tucker, plaintiff, vs. The City of Tempe, defendant. On Friday, December 2, 2005, after considering all of the testimonial and documentary evidence, the jury rendered a verdict in favor of Officer Craig Tucker on his claim under the Americans with Disabilities Act against the City of Tempe and expressly concluded that Officer Tucker was a "qualified individual" with a "disability" under the Act and that the City intentionally terminated his employment with the City because of his disability. The jury also rejected all of the City's affirmative defenses to Officer Tucker's ADA claim, including the assertion that his continued employment with the City presented a "direct threat" and that accommodating him would result in an "undue hardship" to the City. Based on the jury's verdict in favor of Officer Tucker on his ADA claim, he is entitled to a post-verdict judgment from the Court reinstating his employment with the City of Tempe. See, e.g., Lutz v. Glendale Union High School, 403 F.3d 1061, 1068 (9th Cir. 2005) (reinstatement is an equitable remedy to be resolved by the district court post-verdict under the ADA), and Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir.1978) ("it is within the discretion

No. CIV 03-1425-PHX-DGC Plaintiff's Motion for Reinstatement (Oral argument requested)

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of the trial court to order reinstatement of a wrongfully discharged employee" under Title VII of the Civil Rights Act of 1964).1 For at least the past two decades, the Ninth Circuit has repeatedly indicated that "reinstatement . . . is the 'preferred remedy' in a discrimination suit." Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014 (9th 2000), quoting Gotthardt v. National R.R. Passenger Corp., 191 F.3d 1148, 1156 (9th Cir.1999). See also, Cassino v. Reichhold Chems., Inc. 817 F.2d 1338, 1346 (9th Cir.1987) ("reinstatement is the preferred remedy in [discriminatory discharge] cases"). Circuit courts throughout the Nation concur. As the Sixth Circuit recently observed in Fuhr v. School District of the City of Hazel Park, 364 F.3d 753, 760-761 (6th Cir. 2004): Upon a finding of invidious discrimination, a district court has wide discretion to impose equitable remedies in order to "fashion the most complete relief possible" designed to "make the victims of unlawful discrimination whole." Shore v. Federal Express Corp., 42 F.3d 373, 377 (6th Cir.1994) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405). The availability of instatement or reinstatement is therefore entrusted to the sound discretion of the district court, and a decision granting such relief is reviewed by this Court only for abuse of discretion. Shore, 42 F.3d at 377-78. Furthermore, as Fuhr has noted, the central purpose of the state and federal anti-discrimination laws on which this suit is based is "to make the person whole for injuries suffered on account of unlawful employment discrimination," and the general rule is therefore that "[t]he injured party is to be placed, as near as may be, in the situation [s]he would have occupied if the wrong had not been committed." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975). We have held that victims of discrimination are presumptively entitled to instatement or reinstatement, Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1171 (6th Cir.1996); Shore v. Federal Express Corp., 777 F.2d 1155, 1159 (6th Cir.1985), and that reinstatement is the preferred equitable remedy in cases where discrimination has been proved. See E.E.O.C. v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 836 (6th Cir.1997); Schwartz v. Gregori, 45 F.3d 1017, 1023 (6th Cir.1995). (Emphasis added.) Similarly, in Che v. Massachusetts Bay Transportation Authority, 342 F.3d 31, 42-43 (1st Cir. 2003), the First Circuit reasoned that:

"The ADA expressly incorporates the remedies available under Title VII of the Civil Rights Act of 1964." Lutz v. Glendale Union High School, 403 F.3d 1061, 1067 (9th Cir. 2005). -2-

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In cases such as this one, which involve employment discrimination under Title VII, a district court's discretion to fashion an equitable remedy must be consistent with the important national goals reflected in the statute. See Selgas, 104 F.3d at 12; Lussier, 50 F.3d at 1111. As the Supreme Court has explained, the goals of Title VII include "eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362 (1975). We have recognized that reinstatement is an important remedy because it "most efficiently" advances the goals of Title VII by making plaintiffs whole while also deterring future discriminatory conduct by employers. Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 19 (1st Cir.1999); See also Hiraldo-Cancel v. Aponte, 925 F.2d 10, 13 (1st Cir.1991). As a result, we have said that in employment discrimination cases, "the overarching preference is for reinstatement." Selgas, 104 F.3d at 13. (Emphasis added.) See also, Dilley v. SuperValu, Inc., 296 F.3d 958, 968 (10th Cir. 2002) ("reinstatement is the preferred remedy under the ADA"), and Bruso v. United Airlines, Inc., 239 F.3d 848, 861 (7th Cir. 2001) ("reinstatement is the preferred remedy for victims of discrimination, and the court should award it when doing so is feasible"). Accordingly, in light of (1) the jury's explicit finding that Officer Tucker is a "qualified individual" with a "disability" who was intentionally terminated by the City because of his disability, and (2) the jury's rejection of all of the City of Tempe's affirmative defenses, the Court should enter an order requiring the City to reinstate him to his former position as a Patrol Officer with the City of Tempe Police Department. Alternatively, if, after briefing and oral argument, the City satisfies its heavy burden of establishing that it would be infeasible to reinstate Officer Tucker to his former position as a Patrol Officer at the Department for reasons not inconsistent with the jury's verdict, the Court should order the City to reinstate Mr. Tucker to another comparable position within the Police Department or in another department within the City of Tempe. RESPECTFULLY SUBMITTED this 4th day of December 2005. By s/ Stephen G. Montoya Stephen G. Montoya Montoya Jimenez, P.A. 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on December 5, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Marlene A. Pontrelli Janis L. Bladine Kara L. Stanek Tempe City Attorney's Office P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendants I further certify that on December 5, 2005, the attached document was hand-delivered to: The Honorable David G. Campbell United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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