HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/TANBERG.ASC

Text File | 1993-01-14 | 17KB | 343 lines

/* This case is reported in 787 F.Supp. 970 (D.Colo. 1992). In
this case, the federal rehabilitation act is used by an HIV
positive sheriff's deputy who was fired to get into the legal
system. The Judge finds that the Rehabilitation Act does provide
for money damages. The Court also finds that equitable relief
(such as reinstatement) is perhaps inappropriate since the
physical condition of Tanberg is deteriorating- and important
precedent for the future. */

Bret Tanberg, Plaintiff

v.

The Weld County Sheriff, Defendant.

United States District Court, District of Colorado.

March 18, 1992.



BABCOCK, D.J.:

I. Introduction

This is an action filed under the Federal Rehabilitation Act (29
U.S.C.  794 (1988)) (the Act). Federal question jurisdiction
exists under 28 U.S.C.  1331 (1980). Defendant Weld County
Sheriff's Department (the Department) moves for partial summary
judgment regarding compensatory damages. Plaintiff Bret Tanberg
(Tanberg) moves for summary judgment on liability, to remove the
use of the pseudonym, and for a protective order. I will deny the
Department's motion for partial summary judgment because
compensatory damages are available for Tanberg's claim under the
Act. Also, because there are disputed material facts surrounding
the Department's reasons for terminating Tanberg, I will deny his
motion for summary judgment. I will grant in part and deny in
part Tanberg's remaining procedural motions.

Tanberg was a volunteer reserve deputy for the Department from
May 1988 until he was discharged on February 16, 1990. Tanberg
alleges that he was discharged because he tested positive for the
Human Immunodeficiency Virus (HIV). He asserts claims against the
Department under the Federal Rehabilitation Act and Colorado's
anti-discrimination employment  laws ( 24-34-402 10B C.R.S. (1988
Repl. Vol.)). In addition to reinstatement and injunctive relief
calling for the implementation of an AIDS education and awareness
program at the Department, Tanberg seeks compensatory damages for
loss of employment opportunities, emotional distress, and pain
and suffering.



II. The Department's Motion for Summary Judgment on Compensatory
Damages

The Department contends that compensatory damages are unavailable
under the Act. Although the Act does not specify whether a
claimant can recover compensatory damages, it provides that the
remedies available under Title VI of the Civil Rights Act of 1964
(42 U.S.C.  2000d et seq.) (Title VI) shall be available to any
person aggrieved under the Act. 29 U.S.C.  794a(a)(2) (1978). No
remedies, however, are specified under Title VI.

Franklin v. Gwinnett County Public Schools, -- U.S. -- 112 S.Ct.
1028, 117 L.Ed.2d 208 (1992) provides dispositive analysis for
determining whether compensatory damages are obtainable under the
Act. Franklin holds that compensatory damages are available to a
claimant under Title IX of the Education Amendments of 1972, 20
U.S.C.   1681-1688 (Title IX). Title IX, like the Act and Title
VI, is silent as to the remedies available to a claimant.

In determining what remedies are available under Title IX, the
Court began its analysis with the deeply rooted presumption that
"where legal rights have been invaded, and a federal statute
provides for a general right to sue for such invasion", all
appropriate remedies are available to a claimant unless Congress
expressly indicates otherwise.

Franklin, -- U.S. at -- 112 S.Ct. at 1033. After concluding that
Congress has not expressly forbidden compensatory damages in
Title IX actions, the Court held that compensatory damages are
available for a Title IX violation. Franklin, -- U.S. at -- 112
S.Ct. at 1036.

Once the Court determined that compensatory damages are available
under Title IX, it analyzed whether they are an appropriate
remedy. Compensatory damages were held to be appropriate in
Franklin because the sexual harassment alleged was an intentional
act of discrimination under Title IX and compensatory damages are
appropriate to redress intentional acts of discrimination.
Franklin, -- U.S. at -- 112 S.Ct. at 1037. The Court also noted
that "[u]nder ordinary convention, the proper inquiry would be
whether monetary damages provided an adequate remedy, and if not,
whether equitable remedies would be appropriate." Franklin, --
U.S. at -- 112 S.Ct. at 1038. The Court concluded that monetary
damages were appropriate because the equitable remedies of
backpay and prospective relief would not redress adequately the
sexual harassment suffered by the plaintiff. Franklin, - U.S. at
-, 112 S.Ct. at 1038.

Here, as in Franklin, Tanberg's claim arises under a federal
statute that does not specify the relief obtainable. However,
because Tanberg has a right to sue under the Act for the
discrimination alleged, any appropriate remedy, including
compensatory damages, is available to "make good the wrong done".
Franklin, -- U.S. at -- 112 S.Ct. at 1033. Furthermore, Congress
has not expressly disallowed compensatory damages under the Act.
It is thus clear that compensatory damages are not prohibited
here.

The issue then is whether compensatory damages are an appropriate
remedy in this case. I conclude that they are appropriate.

The Franklin Court held that compensatory damages were
appropriate to redress the plaintiff's injuries because the
sexual harassment alleged there was an act of intentional
discrimination under Title IX. See Franklin, -- U.S. at -- 112
S.Ct. at 1037. Tanberg stated at oral argument that he is
prepared to prove the Department intentionally discriminated
against him because of his HIV status. Consequently, as in
Franklin, compensatory damages are obtainable if Tanberg proves
intentional discrimination under the Act.

The adequacy of compensatory damages is also considered before
appraising the sufficiency of equitable remedies. Franklin, --
U.S. at --,112 S.Ct. at 1038. Money damages would be adequate to
compensate Tanberg for the alleged loss of professional opportu
nity, mental anguish, pain, and suffering he allegedly
experienced as a result of the claimed violation of the Act.

Moreover, without limiting Tanberg to compensatory damages alone,
money damages tend to redress his alleged discrimination better
than the equitable remedies he seeks. At oral argument Tanberg
stated that reinstatement may not be feasible because of his
deteriorating physical condition. Nor is Tanberg's request that
the Department implement an AIDS awareness and education program
a better remedy than compensatory damages. Although such programs
may be beneficial to society, any added awareness or knowledge
about AIDS within the Department fostered by such an awareness
program would not remedy Tanberg's claimed injuries because he no
longer works for the Department. Therefore, the money damages
Tanberg seeks are appropriate to redress the wrong alleged here.

Finally, allowing Tanberg to recover compensatory damages is
consistent with the following 1986 amendment to the Civil Rights
Act of 1964:

(1) A State shall not be immune under the Eleventh Amendment of
the Constitution of the United States from suit in Federal court
for a violation of Section 794 of Title 29..

(2) In a suit against a State for a violation of a statute
referred to in paragraph (1), remedies (including remedies both
at law and at equity) are available for such a violation to the
same extent as such remedies are available for such a violation
in the suit against any public or private entity other than a
State.

42 U.S.C.  2000d-7 (1986) (emphasis added).

The concurring opinion in Franklin interprets these subsections
as implicitly acknowledging that damages are available under the
1964 Civil Rights Act. Franklin, - U.S. at -, 112 S.Ct. at 1038
(Scalia, J., concurring). Because remedies under the Act are
governed by this provision, it follows that compensatory damages
are available here.

I conclude that because Congress has not expressly prohibited
compensatory damages under the Act and because compensatory
damages are an appropriate remedy to redress the intentional
violation alleged here, Tanberg's claim for compensatory damages
will stand. Therefore, the Department's motion for partial
summary judgment is denied.



III. Tanberg's Motion for Summary Judgment on Liability

A.   Summary judgment standards

Summary judgment shall be granted if there is no genuine issue as
to any material fact arid the moving party is entitled to judg
ment as a matter of law. Fed.R.Civ.P. 56(c). Where, as here, a
plaintiff moves for summary judgment it bears the following
burden:

If the moving party will bear the burden of persuasion at trial,
that party must support its motion with credible evidence using
any of the materials specified in Rule 56(c) that would entitle
it to a directed verdict if not controverted at trial. ... Such
an affirmative showing shifts the burden of production to the
party opposing the motion and requires that party ... to produce
evidentiary materials that demonstrate the existence of a
"genuine fact" for trial.

Anderson v. Department of Mental Health & Human Services, 907
F.2d 936, 947 (10th Cir.1990) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 331,106 S.Ct. 2548, 2557, 91 L.Ed.2d 265 (1986)
(White, J. concurring) (emphasis in original)).

B.   Federal Rehabilitation Act

Tanberg asserts that there are no controverted facts and he is
entitled to judgment as a matter of law on his claim under the
Act and Colorado's anti-discrimination laws. To the contrary,
except for the question of federal financial assistance, the
Department has demonstrated that genuine issues of material fact
remain for trial.

Under the Act it is unlawful to exclude any otherwise qualified
handicapped person, as defined in 29 U.S.C.  706(8), from partici
pating in any program or activity receiving federal financial
assistance solely because of handicap.

/* A different way of attacking alleged discrimination than usual
and significant since it finds that the public's reaction to a
person being HIV positive is within the protections of the . */

29 U.S.C. 794(a). To prove a claim under the Act, a plaintiff
must first show that he is otherwise qualified for the position
despite his handicap but was rejected under circumstances giving
rise to an inference of rejection based solely on his handicap.
Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1387
(10th Cir.1981). Once a plaintiff satisfies this burden, a
defendant has the burden of proving that the plaintiff was not an
otherwise qualified handicapped person or rejection from the
program for reasons other than his handicap. Pushkin, 658 F.2d at
1387. If a defendant satisfies this burden, then a claimant has
the burden of going forward with rebuttal evidence showing that
the defendant's reasons for rejecting plaintiff are based on
misconceptions or unfounded factual conclusions and the reasons
articulated for the rejection, other than the handicap, encompass
unjustified consideration of the handicap itself. Pushkin, 658
F.2d at 1387.

C.   Federal Financial Assistance

The Department's contention to the contrary notwithstanding, I
conclude that it receives federal financial assistance and,
therefore, is subject to the Act. The Act prohibits "any program
or activity receiving federal financial assistance" from discrimi
nating against people with handicaps. 29 U.S.C.  794(a). As a
department or instrumentality of a state or local government, the
Department is a program or activity under the Act. 29 U.S.C.
794(b)(1)(A).

If any part of the Department receives federal financial
assistance, the whole entity is deemed to be a program receiving
federal financial assistance under 29 U.S.C.  794(b).
Furthermore, such federal assistance can be passed to the
Department through a state or local government. 29 U.S.C.
794(b)(1)(B). The Department's comprehensive annual financial
reports show that it received federal grants from 1988 through
1990. (Don Warden Depo. at 29:6-16; 52:12-54:24.) This evidence
is uncontroverted and, thus, suffices to establish as a matter of
law that the Department is a program receiving federal financial
assistance.

Furthermore, contrary to the Department's contentions, these
grants are not compensation from the federal government for
services rendered. If a program receives federal funds as
compensation, then it is not a federally assisted program under
the Act. DeVargas v. Mason & Hanger-Silas Mason Co., Inc., [54
EPD 40,1551 911 F.2d 1377, 1382 (10th Cir.1990), cert. denied,
[55 EPD 40,495]  -- U.S. -- 111 S.Ct. 799, 112 L.Ed.2d 860
(1991). A program, however, is covered by the civil rights laws
if the federal government intended to subsidize the program.
DeVargas, 911 F.2d at 1382. Here the federal government is not
purchasing law enforcement services from the Department. Rather,
these grants are subsidies.

D.   Liability

The Weld County sheriff, under-sheriff, and a lieutenant in the
Department testified that Tanberg was discharged because he
abused his position for personal gain on three occasions and
because the manner in which he disclosed his HIV condition caused
disruption within the Department. (Under-sheriff Dill Depo. 97:14-
100:12, 115:25-116:19.) The first incident relates to a car
accident involving Tanberg. Tanberg allegedly filed a harassment
complaint against the other driver and sought to use the re
sources of the Department to investigate the accident to exert
pressure on the other driver to settle the personal injury suit.
(Dill Depo. 118:19  120:10.) Second, Tanberg allegedly wore his
uniform when confronting an individual about payment for a car
accident. (Dill Depo. 120:19-121:24; Sheriff Jordan Depo. 58:18-
61:10.) Third, Tanberg allegedly did not pay for boarding his dog
at a veterinarian's office. He supposedly told the veterinarian
that he was participating in an undercover operation for the
Department and did not have to pay for boarding his dog. (Dill
Depo. 101:25-102:6, 122:11  124:12; Jordan Depo. 19:2-20:3; Lt.
Malcom Depo. 58:11-59:19.) Finally, the Department contends that
Tanberg used poor judgment in revealing his HIV condition. The
Department argues that this disclosure caused disruptions within
the Department. (Jordan Depo. 28:1-25, 36:9-37:20; Malcom Depo.
56:8-15.)

Tanberg argues that the non-discriminatory reasons recited by the
Department for his discharge are unfounded or based on
misconceptions. However, at this summary judgment stage, these
deposition supported reasons are sufficient to create a genuine
issue as to whether Tanberg was terminated solely because of his
handicap. Summary judgment is thus inappropriate on Tanberg's
claim under both the Act and Colorado's anti-discrimination laws.

IV. Tanberg's Procedural Motions

Tanberg's motion to remove the use of the pseudonym, unopposed by
the Department, is granted. Additionally, he seeks a protective
order preventing the Department's lawyers from contacting his
relatives and personal acquaintances. The Department asserts that
their testimony as to Tanberg's mental state and physical
condition is relevant to the issue of compensatory damages.

Also, there is no evidence that the Department is harassing these
prospective witnesses. Because these prospective witnesses may
possess relevant, admissible information the Department may
continue to contact them for proper purposes.

 Tanberg's request, however, that the Department maintain
confidentiality of these prospective witnesses' identities is
well taken. Accordingly, Tanberg's motion for a protective order
is denied to the extent it restrains the Department from
contacting prospective witnesses for proper purposes. The motion
for protective order is granted to the extent that the Department
is restrained from revealing the identities of Tanberg's
relatives, former wife and personal acquaintances.

 Accordingly, It Is Ordered that:

 (1)The Department's February 18, 1992 motion for partial
summary judgment Is Denied;
 (2)Tanberg's February 27, 1992 motion for summary judgment,
superseding and replacing his February 18, 1992 motion for
summary judgment, Is Denied;
 (3)Tanberg's March 13, 1992 motion to remove the use of the
pseudonym Is Granted; and
 (4) Tanberg's March 13, 1992 motion for a protective order Is
Denied In Part And Granted In Part.