Free Motion for Judgment - District Court of Arizona - Arizona

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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

TEMPE CITY ATTORNEY'S OFFICE MARLENE A. PONTRELLI, #016980 KARA L. STANEK, #020161 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Phone: (480) 350-8227 Fax: (480) 350-8645 Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA CRAIG TUCKER, No. CV 03-1425 PHX DGC Plaintiff, v. THE CITY OF TEMPE, Defendant. DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW

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Defendant City of Tempe (hereinafter "Tempe"), by and through undersigned counsel and pursuant to Rule 50, Federal Rules of Civil Procedure, hereby moves this Court to grant its Motion for Judgment as a Matter of Law. This Motion is more fully supported by the attached Memorandum of Points and Authorities. DATED this 1st day of December, 2005. TEMPE CITY ATTORNEY'S OFFICE

/s/ Marlene A. Pontrelli Marlene A. Pontrelli Kara L. Stanek Attorneys for Defendant

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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

MEMORANDUM OF POINTS AND AUTHORITIES Plaintiff, Craig Tucker, a former employee of Tempe, has alleged violations of the Americans with Disabilities Act, 42 U.S.C. §12112 (the "ADA"), and the Civil Rights Act, 42 U.S.C. §1983 ("Section 1983"), in relation to his employment in the Police Department. Plaintiff filed a Complaint on or about July 25, 2003 against the City of Tempe alleging employment discrimination based upon the ADA and retaliation in the workplace for alleged First Amendment protected speech. At this juncture, Plaintiff has had the opportunity to fully present his case in chief and has rested. Given the entirety of the testimony and documentary evidence thus far admitted, and in light of allowing all reasonable inferences to be construed in favor of Plaintiff, there is no legally sufficient evidentiary basis to find for Plaintiff on any claims, and thus the Motion must be granted. I. PLAINTIFF HAS FAILED TO MEET THE BURDEN OF PROOF AT TRIAL REGARDING HIS ADA CLAIMS. The relevant law regarding disability claims requires that Plaintiff: 1) be disabled within the meaning of the ADA, 2) be a qualified individual able to perform the essential functions of the job, and 3) suffer an adverse employment action because of his disability. 42 U.S.C. §12112. Allen v. Pacific Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) citing Nunez v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). The Plaintiff bears the burden of proving he is disabled within the meaning of the ADA. Thornton v. McClatchy Newspapers, Inc. 261 F.3d 789, 794 (9th Cir. 2001), later supplemented at 292 F.3d 1045 (9th Cir. 2002). A. Plaintiff is not disabled within the meaning of the ADA.

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A disability is defined under the ADA as: (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. 42 U.S.C. §12102(2). Plaintiff concedes that he has a disability under subsection (c) being

"regarded as having such an impairment," alleging that Tempe perceived Plaintiff as disabled. In determining whether Plaintiff was "regarded as" being disabled, Plaintiff 2
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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

must show he 1) has an impairment which is not substantially limiting but which Tempe perceived as constituting a substantially limiting impairment; or 2) has an impairment which is substantially limiting only because of the attitudes of others toward such an impairment; or 3) has no impairment at all but is regarded as having a substantially limiting impairment. 29 C.F.R. §1630.2(l). Thus, in order for Plaintiff to be "regarded as" disabled, he must show either that the impairment was in fact a substantial limitation or that Tempe believed the impairment was a substantial limitation. The issue then becomes whether Plaintiff has offered sufficient evidence to show that Tempe believed the perceived impairment substantially limited him in a major life activity. The Supreme Court has created a demanding standard in order for an individual to qualify as disabled by interpreting the terms "substantially" and "major life activity." Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). The Court held that the term "substantial" suggests "considerable or to a large degree...The word `substantial' thus clearly precluded impairments that interfere in only a minor way." Id. at 197. The Court also interpreted the term "major life activity" to mean important or "...those activities that are of central importance to daily life." Id. The term `major life activity' is also defined in the EEOC regulations as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. §1630.2(j). Plaintiff has alleged that Tempe believed he could either not perform or was significantly impacted in his ability to perform the major life activity of work. However, Plaintiff must show that that he was "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. §1630.2(j)(3). The mere inability to perform a single, particular job--such as a police officer does not constitute a substantial limitation in the major life activity of working. Id. The Second Circuit has specifically held that the position of a police officer was not sufficient to satisfy the substantial limitation of a major life activity requirement. See Daley v. Koch, 3
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892 F.2d 212, 215 (2d Cir. 1989). Further, the Supreme Court requires that in order to be substantially limited in the major life activity of working, Plaintiff "must be precluded from more than one type of job, a specialized job, or a particular job choice." Sutton v. United Air Lines, 527 U.S. 471, 489 (1999). Plaintiff is required to "prove a disability by offering evidence that the extent of the limitation in terms of their own experience...is substantial." Albertsons Inc. v. Kirkingburg, 527 US 555, 567 (1999). Here, Plaintiff has failed to present sufficient evidence to demonstrate he was in fact, or was perceived as being substantially limited in major life activities for purposes of daily living, or as compared to what is important in the daily life of most people. 29 C.F.R. §§1630.2(j)(2)(ii-iii). Plaintiff has not presented sufficient evidence to show that he has a disability under the ADA which is an essential element of an ADA claim. Therefore, Plaintiff's ADA claims fail and the Court should grant this Motion. B. Plaintiff is not a qualified individual with a disability.

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Even assuming arguendo that Plaintiff was in fact "regarded as" having a disability, Plaintiff is not a qualified individual with a disability, and was not otherwise qualified within the meaning of the ADA. A "qualified individual with a disability" is defined as someone "...who satisfied the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position." 29 C.F.R. §1630.2(m). Essential functions do not include "marginal functions of the position." Id. at (n)(1). Rather, consideration should be given to Tempe's judgment of what is essential and to the written job descriptions prepared before advertising or interviewing for the job. 42 U.S.C. §12111(8). Further, the Supreme Court has held that a plaintiff's assertion in a sworn application for disability benefits that they are unable to work contradicts the essential elements of an ADA case. See Cleveland v. Policy Management Systems, 526 U.S. 795, 806 (1999). Consider also the plaintiff in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000), who identified herself as "totally disabled" and received 4
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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

Social Security benefits for total disability. The Court in Weyer held that she did not raise a material issue of fact as to whether she was a "qualified individual" entitled to sue because she had previously received benefits for total disability and failed to present evidence that she could perform the essential functions of her employment. Id. at 1109. The Court concluded that the ADA was designed to protect against discrimination when the "...employee is potentially able to do the job in question." Id. In the case at hand, Plaintiff was incapable of performing the essential functions of a police officer with or without reasonable accommodations, as concluded by the fitnessfor-duty evaluations conducted by several doctors who performed various evaluations. In fact, Plaintiff's own application for disability benefits and medical retirement are admissions that he is not able to perform the essential functions of the job. Because Plaintiff could not perform the essential functions of a police officer, he is not a "qualified individual with a disability" under the ADA and thus, fails to prove the elements of his ADA claims. Moreover, Plaintiff testifies that he is not qualified to perform all the essential functions of the job because he cannot go to court now because he admits he lied in an internal investigation. C. A reasonable accommodation was not required.

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Even if Tempe "regarded" Plaintiff as disabled, the ADA does not require Tempe to provide Plaintiff with a reasonable accommodation because "regarded as" individuals are not entitled to reasonable accommodations under the ADA when there is no actual disability. Kaplan v. City of North Las Vegas, 323 F.3d 1226 (9th Cir. 2003). Although many other Circuits at the time had already held that "regarded as" plaintiffs were not entitled to reasonable accommodations, the Ninth Circuit considered the ramifications of requiring reasonable accommodations to "regarded as" individuals. Id. at 1232. The Court concluded that requiring accommodations to "regarded as" individuals would lead to "bizarre results" such as preferable treatment of employees who are not disabled increasing stereotypes, discouraging employees to educate employers to see their talents, 5
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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

compelling employers to spend resources unnecessarily when they would be better spent on those actually disabled. Id. at 1232. Here, because Plaintiff is not actually disabled, Tempe did not have a duty to accommodate him, even if he was "regarded as" a disabled individual. II. PLAINTIFF HAS FAILED TO MEET THE BURDEN OF PROOF AT TRIAL REGARDING HIS RETALIATION CLAIM. Plaintiff claims that he was retaliated against for circulating what he calls internal petitions and public criticisms about the Police Department, and that his employment was terminated as a final result. In order to successfully state a claim for retaliation against a government entity such as Tempe for violation of the First Amendment under §1983, Plaintiff must present a prima facie case showing all of the following: 1) engagement in protected speech; 2) an adverse employment action and 3) that the speech was a substantial and motivating factor for the adverse employment action. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000); Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003). A. Plaintiff's speech was not protected because it did not concern a subject of legitimate news interest.

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Before the Court needs even to apply the Pickering balancing test (balancing the interests of the employee as a citizen and the interests of the public employer in promoting the efficiency of public service, the Court must find that the speech concerns a matter of "public concern". To conclude otherwise and to apply the balancing test for any speech would "compromise the proper functioning of government offices" and "ignore the `common-sense realization that government offices could not function if every employment decision became a constitutional matter." City of San Diego v. Roe, 125 S.Ct. 521, 525 (2004). Thus, speech is protected only if it addresses a "matter of

legitimate public concern." San Diego, 125 S.Ct. at 525; Coszalter, 320 F.3d at 973 citing Pickering v. Bd. of Educ., 391 U.S. 563, 571 (1968). The Supreme Court has recently provided additional guidance as to what constitutes a matter of public concern. A court should look at the "content, form, and context of a given statement, as revealed by 6
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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

the whole record," Id. citing Connick, to determine whether the speech concerns a "subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." San Diego, 125 S.Ct. at 526. Prior to the Supreme Court's decision in San Diego, the Ninth Circuit contrasted protected speech of a legitimate public concern with unprotected speech concerning personnel disputes. The Court stated that speech that deals with "...individual personnel disputes and grievances and that would be of no relevance to the public's evaluation of the performance of governmental agencies is generally not of public concern." See McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983). In the case before this Court, the evidence presented by Plaintiff demonstrates that he was not engaged in protected speech. Rather, he circulated memos and fliers that involved personnel disputes regarding possible changes in shift schedules. Plaintiff has not presented sufficient evidence to show that he engaged in protected speech which is an essential element of his retaliation claim and, therefore, the Court should grant this Motion. B. No adverse employment action has been shown.

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Even assuming arguendo that Plaintiff's speech was protected, Plaintiff has failed to show he suffered any adverse employment actions. In order to constitute an adverse employment action by a government employer, the action must be "reasonably likely to deter" someone from engaging in the protected activity. Coszalter, 320 F.3d at 976 citing Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1998). Plaintiff has failed to present any evidence that Tempe took adverse employment actions against him that would have reasonably likely deterred him from engaging in protected speech. Tempe conducted fitness-for-duty evaluations as a response to concerns made by Plaintiff's co-workers for the well-being and safety of Plaintiff as well as the public. The fitness-for-duty

evaluations concluded that Plaintiff was not fit-for-duty. Plaintiff's employment with Tempe ended when Plaintiff exhausted his long-term disability and could not return to work. As such, Tempe had a legitimate, non-retaliatory reason for severing Plaintiff's 7
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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

employment. Therefore, Plaintiff has failed to present sufficient evidence of an adverse employment action which is an essential element of his retaliation claim. C. Plaintiff fails to provide a causal link.

Plaintiff must also prove that Tempe's conduct was a "substantial or motivating factor" in response to the protected speech by introducing evidence: 1) regarding the proximity in time between the protected action and the allegedly retaliatory employment decision; or 2) that Tempe expressed opposition to his speech, either to him or to others; or 3) that Tempe's explanations for the adverse employment action were false and pretextual. Keyser v. Sacramento City Unified School District, 265 F.3d 741, 752 (9th Cir. 2001). Once again, Plaintiff has failed to show a causal link between the speech, and the alleged adverse employment action which is an essential element of his retaliation claim. Therefore, Plaintiff has failed to present sufficient evidence to establish his retaliation for protected speech claim and thus, the Court should grant this Motion for Judgement as a Matter of Law. III. CONCLUSION Based upon the foregoing reasons, Tempe respectfully requests that its Motion for Judgment as a Matter of Law be granted. RESPECTFULLY SUBMITTED this 1st day of December, 2005. TEMPE CITY ATTORNEY'S OFFICE

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/s/ Marlene A. Pontrelli Marlene A. Pontrelli Kara L. Stanek 21 E. Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280 Attorneys for Defendant

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Tempe City Attorney's Office 21 East Sixth Street, Suite 201 P.O. Box 5002 Tempe, Arizona 85280

CERTIFICATE OF SERVICE I hereby certify that on December 1, 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: Stephen G. Montoya MONTOYA JIMENEZ, P.A. 3200 N. Central Avenue, Suite 2550 Phoenix, AZ 85012 Attorney for Plaintiff I further certify that on December 1, 2005, the attached document was hand delivered to: HONORABLE DAVID G. CAMPBELL United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 623 401 W. Washington Street, SPC 58 Phoenix, AZ 85003

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/s/ Cindy Clore

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