Denver Fire Prevails at Tenth Circuit on Discrimination Suit

A former Denver firefighter who claimed the department’s handling of his disability claim violated the Americans With Disabilities Act, and that his subsequent resignation constituted a constructive discharge, has lost his appeal to the Tenth Circuit Court of Appeals. David Perez filed suit in 2021 claiming disability discrimination, race discrimination, national origin discrimination and retaliation under both federal and state law.

The trial court dismissed Perez’s suit, prompting his appeal. Perez also has other litigation pending over related issues. See this posting from earlier this year. The following is quoted from the Tenth Circuit with quotations and citations removed to facilitate easier reading:

  • Mr. Perez was a firefighter with the Denver Fire Department (DFD) when on March 13, 2019, he sustained a debilitating Line of Duty (LOD) injury to his right hand (his dominant hand) while fighting a house fire.
  • As a result of the injury, he was placed on work restrictions. According to Mr. Perez, between March 19, 2019, and November 13, 2019, (1) he received various modified duty positions that either did not comply with his work restrictions or exacerbated his injury and (2) he was passed over for other, more appropriate positions within the DFD for which he was qualified.
  • On October 21, 2019, Mr. Perez filed a complaint with the Colorado Civil Rights Division (CCRD), which alleged that he was retaliated against and denied the use of Leave Without Pay (LWOP) to attend a medical appointment because he had exhausted his sick leave to be treated for his LOD injury.
  • Mr. Perez was placed on LWOP on December 6, 2019. Based on his belief that the DFD had failed to accommodate his LOD injury and forced him to quit, on February 27, 2020, Mr. Perez informed DFD’s chain of command that he was taking disability retirement and his employment would end on March 2.
  • On December 28, 2020, he filed a charge of disability discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC) based on events from March 19, 2019, through February 27, 2020, when he tendered his resignation.
  • The EEOC issued Mr. Perez a right-to-sue letter on May 4, 2021, and three days later-May 7-Mr. Perez, pro se, filed a complaint in the United States District Court for the District of Colorado alleging discrimination and harassment, retaliation, and failure to accommodate, in violation of federal and state law.
  • Denver [argued] that …Mr. Perez had failed to file a charge of discrimination with the EEOC within 300 days of his constructive discharge, which accrued on February 27, 2020.
  • The court … found that Mr. Perez’s constructive discharge accrued on February 27, 2020, when he gave notice to the DFD chain of command, and therefore, that his December 28, 2020, EEOC complaint was untimely as to any acts pre-dating the constructive discharge and the discharge itself because it was filed more than 300 days after his constructive discharge.
  • An employee wishing to challenge an employment practice under Title VII must first file a charge of discrimination with the EEOC.
  • The same charging requirements, including the 300-day window of actionable work-related incidents, apply to employment practices under the ADA.
  • A constructive discharge claim under Title VII accrues when the employee gives notice of his resignation, not on the effective date of that resignation.
  • The same rule applies to a claim for constructive discharge under the ADA.
  • Therefore, Mr. Perez’s ADA claims accrued on February 27, 2020, when he gave notice of his intent to retire, which means that his charge of discrimination filed with the EEOC on December 28, 2020, was untimely as to his constructive discharge claim or any claims involving acts that pre-dated the constructive discharge.
  • The judgment of the district court is affirmed.

Here is a copy of the complaint:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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