U.S.

Department of Justice

Civil Rights Division

Coordination and Review Section

P.O. Box 66118

Washington, DC 20035-6118

AUG 22 1994 (STAMPED)

The Honorable Wellington E. Webb

Mayor of the City and County of Denver
City and County Building
Denver, Colorado 80202

RE: Complaint Number XX

Dear Mayor Webb:

This letter constitutes the Department of Justice's (the

Department) Letter of Findings with respect to allegations
received by this office concerning violations of Title II of
the Americans with Disabilities Act of 1990 (ADA) by the City
and County of Denver (the City). Title II of the ADA, 42 U.S.C.
​ 12131-12134, prohibits discrimination against qualified
individuals with disabilities on the basis of disability by
State and local governments. The allegations concern the denial of
reasonable accommodations provided to Mr. XX and his
subsequent termination from the Denver Police Department in XX
XX

The regulation implementing Title II, at 28 CFR 35.140(a),

prohibits employment discrimination against qualified
individuals with disabilities. Title II adopts the legal standards of Title
I of the ADA, 29 CFR Part 1630, which took effect in July 1992,
and which also prohibits employment discrimination. 28 CFR
​ 35.140 (b) . The Coordination and Review Section of the Civil
Rights Division is responsible for the investigation and
resolution of administrative complaints alleging violations of
Title II by components of State and local governments in all
programs, services, and regulatory activities relating to law
enforcement and public safety. 28 CFR 35.190(b) (6).

As discussed in detail below, the Department finds that the

City has violated Title II by its failure to provide a
reassignment or transfer as a reasonable accommodation for

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Mr. XX and by terminating him from the Police Department.

Pursuant to 28 CFR 35.172, the Department is issuing this
Letter of Findings and hereby informing the City that the
Department is prepared to enter into negotiations in order to
secure compliance by voluntary means, as provided in 28 CFR
​ 35.173.

FINDINGS OF FACT

COMPLAINT'S POSITION

Officer XX alleged that the Denver Police Department

violated Title II by failing to reassign or transfer him as a
reasonable accommodation for his disability. He further alleges
that this failure resulted in his termination from the City in

Mr. XX patrol officer in the Denver Police

Department from XX until XX During this period, he
was seriously injured on three separate occasions while on duty.
These injuries resulted in herniated and ruptured spinal disks in
his back, pain in his legs, hip and heel, and loss of
coordination in his legs, among other things. He sustained his
most recent injury after a high speed chase and collision in
1991. As a result, he was diagnosed with multiple degenerative
disk disease, left shoulder scapular winging, and thoracic disk
protrusion. These injuries, for which he has received ongoing
medical treatment, restrict Mr. XX from walking up stairs,
repetitive bending or lifting, standing for any length of time,
engaging in physical recreation or sports, and many physical
activities that those without disabilities can engage in. The
injuries have resulted in chronic ongoing pain and discomfort.
Physicians have told Mr. XX that he risks permanent
paralysis if he reinjures his back.

Based on the medical evaluations of City physicians,

Mr. XX was deemed unable to return to full duty in XX .
Mr. XX has a record of this impairment dating back to 1987,
when he first injured himself severely in the line of duty. His
disability prevents him from performing law enforcement work as
an officer (e.g., security guard or correctional officer) and any
work involving heavy labor or lifting (e.g., construction).

Officer XX was placed in a "light duty" desk job

following his most recent injuries, which he sustained in XX
Under the Police Department's personnel policies, injured
officers must be able to return to "full duty" within 365 days or
they are required to retire (usually on a disability pension).
There are no permanent light duty positions provided to officers
injured in the line of duty, nor are reassignments or transfers
to other positions permitted.

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Officer XX was a police officer for 20 years. He

worked as a patrol officer and a detective, and in a variety of other
assignments. He has no other professional or specialized
vocational training. Officer XX believes he is qualified
to perform many other jobs within the Police Department (e.g.,
investigator, lab technician, firearms instructor, or
dispatcher) and that he should be able to remain in some capacity.
His salary as a police officer was $ XX when he retired on
disability. His disability pension is $ XX in addition,
his health insurance is no longer paid by the City.

During his final months on the police force, from

until XX , Officer XX made several requests to
be permanently placed in a related position that did not require
the ability to make a forcible arrest. These transfer or reassign-
ment requests were requests for a reasonable accommodation for
his disability. Because Police Department policies preclude
reassignment or transfer, Mr. XX was terminated in XX
XX on the grounds that he did not recover sufficiently to
resume his duties as a patrol officer, and was directed to apply
for disability retirement. Officer XX alleges that the
City's failure to reassign or transfer him to another position
within the Police Department constituted a denial of a
reasonable accommodation and discrimination against him on the basis
of disability. He alleges that the City had ample opportunity to
make a reasonable accommodation through reassignment or
transfer, but refused to do so, in violation of his rights under
Title II. He seeks reinstatement to a position that is equivalent in terms
of salary, benefits and seniority.

THE CITY'S POSITION

The Denver Police Department's policy permits a police

officer 365 days at full salary to recover from a line-of-duty
injury. Officers who are expected to be off duty for more than
30 days are assigned to the "limited duty section" where they
perform clerical assignments; however, permanent reassignments
to so-called "light duty" positions are not available. If injured
officers who are temporarily reassigned because of injury do not
reach "maximum medical improvement" within one year, and they
are deemed unable to return to full time duty, they are removed
from the payroll and can apply for a disability retirement. Transfer
or reassignment to a non-police officer position within the
Police Department, the Department of Safety, or elsewhere in the
City and County government is not an option. The City maintains
that a transfer to a non-police officer position is
unreasonable, is not an accommodation required by the ADA, and
is a violation of the Denver City Charter, which mandates two
separate and distinct personnel systems.

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The City of Denver has two legally separate employment

systems within the Department of Safety. The Classified Service
consists of all police and fire officers and is administered by
the Civil Service Commission. The Career Service consists of all
other City employees, except members of the Classified Service,
and is administered by the Career Service Authority. The Manager
of Safety is responsible for all public safety employees in the
City of Denver, in both the police and fire departments,
including classified and career employees.

Police officers, as part of the Classified Service, are

classified as "Patrol Officers"; only their rank or assignment
differs (e.g., detective, firearms instructor, Sergeant, etc.).
The positions, such as lab technician and dispatcher, that are
supervised by the Manager of Safety are within the Career
Service, which is the civilian segment of the police workforce.
Career Service employees perform duties designated by the Manager
of Safety through the Chief of Police, and work under the direct
supervision of police managers and alongside police officers in
support roles.

Because of personnel and budget considerations, the Police

Department does not provide permanent inside, or "light duty,"
positions for anyone. The City believes that if it created a
permanent light duty position, this would change the essential
functions of the Patrol Officer's position. Police officers
performing in any capacity are expected to perform the essential
functions of their job, which include the ability to fire a
weapon and make a forcible arrest, if necessary. All police
officers are theoretically on duty 24 hours a day, carry a badge
and weapon, and may be required to act in their law enforcement
capacity at any time. If an injured officer is unable to resume
"full duty" within 365 days (i.e., be able to make a forcible
arrest and fire a weapon), he or she is removed from the force
and can apply for disability retirement. The City considers such
officers no longer "qualified" to perform the essential functions
of their job.

Reassignment to positions in the Career Service of the

Department of Safety (e.g., dispatcher or lab technician) is not
an option. According to the City, the Career Service is an
entirely different personnel system, in which the positions have
their own unique experience requirements and qualification
standards. The City contends that the Police Department has no
authority over the Career Service. In summing up its position,
the City states:
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... the City's interpretation of the ADA requirements

regarding accommodations is that the accommodation
(a transfer) should be related to the job of a police
person, not an entirely different job. More specifically,
our interpretation of the ADA requirement is that the
accommodation would be to his physical limitation
(back problem), and for XX to be a 'qualified' individual
of [sic] a disability he should be capable of performing the
essential functions of the job of police person with an
accommodation, to that disability. Here, XX seeks
to be accommodated into a non-police position without meeting
the qualification standards, test requirements and other
selection criteria for a Career Service position. ... our
position is grounded in a good faith belief that the
transfer requested is unreasonable and not an accommodation
compelled by the ADA...

ANALYSIS

Under Title II of the ADA, which adopts the legal standards

of Title I, reassignment to a vacant position is a right of
qualified individuals with disabilities, and is permitted as a
form of reasonable accommodation. 29 CFR Part 1630.2(o). The
legislative history of Title I explains the intent of this aspect
of the ADA. The Senate Report states: "If an employee, because
of disability, can no longer perform the essential functions of
the job that he or she has held, a transfer to another job for
which the person is qualified may prevent the employee from being
out of work and the employer from losing a valuable worker." S.
Rep. No. 101-116, 101 Cong., 1st Sess. 129-130 (1989).
Consideration of reassignment is only required for persons who
are already employees, and to the extent possible, employers
should reassign individuals to equivalent positions in terms of
pay and benefits.

The City asserts that one of the essential functions of a

patrol officer's job is the ability to make a forcible arrest,
and that its only obligation is to accommodate Mr. in
police positions that require the ability to make a forcible
arrest. The complainant concedes that he is unable to make a
forcible arrest because of the seriousness of the damage to his
spinal disks. However, the fact that the complainant may not
meet the essential functions of a patrol officer's job does not
mean that the city's obligations under the ADA have been met.
The statutory obligation to "reassign" would have no meaning if
it only applied to those individuals who meet the essential
functions of the job they were occupying. Indeed, if they could
meet the essential functions of that job, they would have no need

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to be accommodated by being reassigned. In other words, the

concept of "reassignment" as interpreted by the City has no
meaning.

The statute and regulations make clear that when an

accommodation in an employee's present position is not possible,
reassignment to another position must be considered as a
reasonable accommodation. Reassignment assumes that an essential
function (such as the ability to make a forcible arrest) cannot
be met.

Despite the City's contention that it is impossible to

consider reassignment of police officers with disabilities to
support positions, inter alia, within the department, the City
has not adequately explained its reasoning. The Manager of
Safety, who in fact has direct administrative control over all
employees in the Police Department, has stated in interviews with
DOJ personnel and others in the City that she has given thought
to arranging for transfers, reassignments or alternative
placements for officers with disabilities, like Mr. XX .
Officer XX 20 years of experience in police work, in which
he performed a variety of duties including detective, firearms
instructor, dispatcher and other support services, demonstrates
that he is apparently qualified for a number of positions in the
Police Department. The duty to reassign extends to other related
positions in the City for which the complainant is qualified and
that were vacant at the time it was determined that he would not
be able to return to full duty as a patrol officer. 29 CFR
1630.2(o).

How far beyond the employee's immediate job classification

("patrol officer") the employer must look to meet its obligation
to reassign is a case-by-case decision, taking into consideration
the totality of circumstances, including the employer's size,
structure, general policies and procedures, and the frequency and
location of available positions. In this case there were, in
fact, many vacancies in the Police Department that were available
during the period when Officer XX was on "light duty" for
which he could have been considered, given his years of police
experience and training. The Police Department listed 221
positions that were filled between January 1992 and March 1993;
an additional 13 positions were filled through transfers. Mr. XX
could have been considered for positions such as Emergency
Service Dispatcher, Code Investigator, Staff Probation Officer,
Criminal Justice Technician, Senior Clerk and Specialty Clerk,
among others.

As a further example, the data show that in every month

from March 1992, when the complainant filed his charge, through
February 1993, one or more Emergency Service Dispatcher positions
were vacant and available for reassignment. Generally speaking,

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reassignment should be made to a position equivalent to the one

presently held in terms of pay and job status, if the individual
is qualified for the position and the position is vacant or will
be vacant. Officer XX appeared at that time to possess the
requisite skills and experience to work as a "Dispatcher" and
identified this as an appropriate transfer or reassignment.
Officer XX salary as a patrol officer, approximately
$ XX year, exceeded the salary of Emergency Service
Dispatcher (a maximum of $2,551 per month, or $30,612 per year).
While such a reassignment would not result in entirely equivalent
pay and benefits, it would not be the obligation of the City to
make up the difference between this position and Officer XX
position of patrol officer, if it appears that this is the most
closely equivalent vacant position to which Officer XX could
have been reassigned. If there were other positions available,
the Police Department should have also considered them as
options.

CONCLUSIONS

Based on the information provided by the City, the

Department of Justice concludes that the City's failure to
consider a reassignment or transfer option for police officers
with disabilities to other positions with the City constitutes a
violation of the ADA and the implementing Title II regulation at
28 CFR 35.140(b). The current policies and procedures
implemented by the City as regards officers with disabilities who
are no longer able to carry out a forcible arrest discriminate
against the complainant and others similarly situated, in
violation of Title II. In addition, the City's failure to
reassign Officer XX as a reasonable accommodation for his
disability and its termination of him based on his disability
constitute violations of Title II.

In order to resolve this case, it will be necessary to enter

into a formal written voluntary compliance agreement that will
provide appropriate remedies for the complainant and others
similarly situated, and ensure that the City's policies and
practices conform to the requirements of the ADA. Accordingly,
the Department hereby offers the City an opportunity to negotiate
a voluntary compliance agreement, as provided in 28 CFR § 35.173.
The Department is open to discussing the violations cited in this
letter and remedies that could lead to a satisfactory resolution.
In that regard, Thomas Esbrook, the investigator assigned to this
case, will contact Mr. J. Wallace Wortham, Assistant City

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Attorney, within 15 days to determine whether the City is

interested in entering into voluntary compliance negotiations.
Please be advised that if you choose not to enter into good
faith negotiations within 15 days, or if negotiations are
unsuccessful, we will refer this matter to our litigating unit
for appropriate action. If you or your staff have any questions
or need further information, please contact Mr. Esbrook at
(202) 307-2940.

Sincerely,

(SIGNATURE)

Merrily A. Friedlander
Acting Chief
Coordination and Review Section
Civil Rights Division

ccs: Jack L. Davoll

David C. Feola, Esq.
Elizabeth H. McCann, Manager of Safety
David L. Michaud, Chief of Police
J. Wallace Wortham, Jr., Assistant City Attorney

01-00191