MARCIA S. KRIEGER, Senior District Judge.
The Court exercises jurisdiction under 28 U.S.C. § 1331.
Plaintiff Jared Dennis is an alcoholic who was employed as a deputy in the Summit County Sheriff's Office (SCSO). The named Defendant is the Sheriff, Jaime FitzSimons. On July 27, 2016, Deputy Dennis' wife filed criminal charges against him in Park County. As a consequence, the SCSO placed Deputy Dennis on administrative leave pending an internal affairs investigation. As a condition of such leave, Deputy Dennis was instructed that "You are to remain at a pre-arranged place, available by phone, beginning Thursday, July 28, 2016 from [9:00 a.m.] to [5:00 p.m.]," and that "you are to call on and off duty daily" with his Commander, Lesley Mumford.
With the agreement of Park County officials, Deputy Dennis was permitted to voluntarily appear at his arraignment at 7:00 AM on July 28, 2016. On the night before the arraignment, Deputy Dennis and another SCSO deputy, Sergeant Robert Pearce, got drunk. The following morning, Sergeant Pearce drove Deputy Dennis to the Park County Sheriff's Office for the arraignment. Deputy Dennis was given a breathalyzer test as part of the standard intake process; it revealed a blood-alcohol level of 0.107, above the legal limit. Deputy Dennis remained at the Park County Sheriff's Office for some time thereafter and was given additional breathalyzer tests. At approximately 9:00 AM, his blood-alcohol level registered at 0.082, still well above the legal limit for intoxication. At 10:45 AM, his level was 0.060, still above the limit for intoxicated driving.
Not having heard from Deputy Dennis as expected, Commander Mumford made the decision to terminate Deputy Dennis' employment. Shortly thereafter, Commander Mumford delivered a letter of termination to Deputy Dennis at the Park County Jail. The letter stated Deputy Dennis had violated four SCSO policies:
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Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producers Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus. Inc. v. Arvin Indus. Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Deputy Dennis' four claims come in two sets: discrimination on the basis of disability arising out of Deputy Dennis' termination, and failure to accommodate a disability, each in violation of both the ADA and Rehabilitation Act. The legal analysis for claims brought under the ADA and Rehabilitation Act is the same. Reg'l Econ. Cmty. Action Program Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002).
When there is no direct evidence of discrimination, the Court applies the familiar burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), which applies to discrimination claims under the ADA and Rehabilitation Act. See Davidson v. Am. Online Inc., 337 F.3d 1179, 1189 (10th Cir. 2003); Williams v. Widnall, 79 F.3d 1003, 1005 (10th Cir. 1996). Under this framework, a plaintiff must first make out a prima facie case of discrimination as described below. If he is successful, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment actions. If the employer proffers such a reason, the burden shifts back to the plaintiff to ultimately show that the stated reasons are merely a pretext for discrimination. McDonnell-Douglas, 411 U.S. at 804-05.
To make out a prima facie case, a plaintiff must establish that (1) he is a "qualified individual with a disability," that is, he was qualified, with or without reasonable accommodation, to perform the essential functions of his job; (2) he suffered an adverse employment action; and (3) there is evidence that his employer took the adverse action against him because of his disability. EEOC v. C.R. England Inc., 644 F.3d 1028, 1037-38 (10th Cir. 2011). Sheriff FitzSimons argues that Deputy Dennis cannot establish two elements of the prima facie case — he is neither a qualified individual within the meaning of the ADA, nor is there any connection between his termination and his disability.
Turning first to the question of whether Deputy Dennis is a qualified individual with a disability, it is generally recognized that alcoholism can constitute a disability entitling the employee to protection under the ADA and Rehabilitation Act. Mauerhan v. Wagner Corp., 649 F.3d 1180, 1185 (10th Cir. 2011). Thus, the Court will treat Deputy Dennis as a qualified individual with a disability. There is also no dispute that Deputy Dennis' termination constituted an adverse employment action.
The more difficult question is whether Deputy Dennis has come forward with evidence that his termination resulted from his disability, rather than his conduct. As the Tenth Circuit explained in Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 (10th Cir. 1998), when the disability at issue is alcoholism, the ADA and Rehabilitation Act draw a distinction between "having a disability" and "disability-caused misconduct." Thus, "unsatisfactory conduct caused by alcoholism . . . does not receive protection under the ADA or the Rehabilitation Act".
It is undisputed that the SCSO based its decision to terminate Deputy Dennis' on the fact that he reported for his arraignment in an intoxicated state. Thus, there is no dispute that SCSO's decision arose from his unsatisfactory conduct on the morning of July 28, not from his abstract status as an alcoholic.
Deputy Dennis argues that the SCSO did not take similar disciplinary action against other employees who engaged in alcohol use in close proximity to their duties, specifically Sergeant Pearce, who consumed alcohol with him the night before the arraignment and who drove him to the arraignment, and an unnamed deputy assigned to the Summit County Jail, who drove after drinking while off duty but was only issued a warning. Arguably, evidence that an employer treated similarly-situated individuals differently can give rise to an inference that its actions towards the plaintiff are discriminatory. Clincy v. Transunion LLC, 684 F. App'x 680, 684 (10th Cir. 2017). But Deputy Dennis has not come forward with sufficient evidence to demonstrate that he was indeed similarly situated to either Sergeant Pearce or the unnamed Deputy. The undisputed fact that Sergeant Pearce and Deputy Dennis were drinking together the night before the arraignment does not establish that Sergeant Pearce remained intoxicated when he drove Deputy Dennis to the arraignment the next morning. Indeed, Deputy Dennis testified that he did not believe that Sergeant Pearce was intoxicated on the morning of the arraignment. Thus, Sergeant Pearce is not similarly situated to Deputy Dennis, who was conclusively shown to have still been under the influence of alcohol during and after the scheduled time for the arraignment.
As to the unnamed Deputy (referred to in depositions as "Deputy X"), the record reflects that Lieutenant Gilbert of the SCSO had received reports that Deputy X, while off-duty, had driven drunk on several occasions. Lieutenant Gilbert asked Deputy X about these reports and Deputy X confessed that he had, on some occasions, driven drunk. Lieutenant Gilbert inquired whether Deputy X might have an alcohol problem and offered help if he did, but Deputy X denied having a problem, stating that "I just made some bad choices." Lieutenant Gilbert then "counsel[ed him] on the repercussions of drinking and driving in our profession," and Deputy X stated that he "would not drink and drive again."
The Court finds that Deputy X's situation is not sufficiently similar to Deputy Dennis' such that the Court could infer that Deputy Dennis' situation was instead motivated by discrimination against his status as an alcoholic. Most notably, Lieutenant Gilbert's counseling with Deputy X expressly included an offer to provide help to Deputy X if he believed he had an alcohol problem — i.e., if he was an alcoholic — suggesting exactly the opposite inference than Deputy Dennis asks the Court to draw from that situation. Moreover, the record does not reflect that Deputy X and Deputy Dennis were otherwise similarly situated in all relevant respects. Clincy, 684 F. App'x at 684. They did not report to the same supervisor, and there is no indication that Lieutenant Gilbert is in the same line of authority as Commander Mumford.
Accordingly, because the Court finds that Deputy Dennis was not similarly situated to Sergeant Pearce and Deputy X, the Court cannot conclude that the different discipline they received permits an inference that the SCSO discriminated against Deputy Dennis because of his status as an alcoholic.
Deputy Dennis also brings a claim for discrimination based on a failure to accommodate his disability. The ADA provides that an employer is obligated to make any reasonable accommodations that may be necessary to permit a qualified employee with a disability to perform his job. Smith v. Midland Brake Inc., 180 F.3d 1154, 1160-61 (10th Cir. 1999). When a claim of discrimination contends that the employer failed to accommodate the employee's disability, the employee must demonstrate the existence of a facially reasonable accommodation that the employer could (and should) have made; the burden then shifts to the employer to demonstrate that it was unable to provide that accommodation within the terms of the ADA. Hennagir v. Utah Dep't of Corr., 587 F.3d 1255, 1264 (10th Cir. 2009).
The record is undisputed that Deputy Dennis did not request any accommodation until after he was terminated. In his Response, Deputy Dennis does not address the failure to accommodate claim at all. Having identified no reasonable accommodation that he requested and that Sheriff FitzSimons refused, the Court finds that Deputy Dennis has failed to come forward with a prima facie case of failure to accommodate. Summary judgment is appropriate for the Sheriff.
For the foregoing reasons, the Defendants' Motion for Summary Judgment (
