Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—10th Cir.: Firefighter who resigned after injury cannot reopen late-filed disability discrimination case, (Feb 10, 2025)

By Jason Albright, J.D.

He resigned, by emailing his chain of command, more than 300 days before he brought suit.

A Denver firefighter who resigned after he was injured in the line of duty and then passed over for other placements he sought as an accommodation was properly denied his motion to reopen his disability discrimination, harassment, and retaliation case, which he filed more than 300 days after he submitted the resignation. He argued that a newly-discovered email from a pension representative showed that the 300-day limitations period was actually triggered on a later date that the city determined to be his last day of work, but the question of his last day of work was unrelated to that of when he gave notice of his resignation for purposes of the 300-day deadline, and the district court acted within its discretion in holding that the second email was immaterial to the district court’s finding of futility (Perez v. City and County of Denver, No. 24-1243 (10th Cir. Feb. 7, 2025, nonprecedential)).

Injured in the line of duty. The plaintiff, a firefighter for the City and County of Denver, was injured in the line of duty in March 2019. He alleged that between March 2019 and December 2019, the city failed to accommodate his injury and passed him over for other more appropriate positions for which he was qualified.

Resigned. Based on his belief that the city had failed to accommodate his injury and forced him to quit, the firefighter resigned by emailing his chain of command on February 27, 2020. The email advised that he intended to take disability retirement as of March 2, 2020.

Charge and lawsuit. Then, on December 28, 2020—more than 300 days after his resignation email—the former firefighter filed a charge of disability discrimination and retaliation with the EEOC. The EEOC issued a right-to-sue letter on May 4, 2021, and three days later, he filed a complaint in district court alleging discrimination and harassment, retaliation, and failure to accommodate, in violation of federal and state law.

Dismissed. After he twice amended his complaint, the city moved to dismiss and argued that he had not alleged facts sufficient to establish administrative exhaustion. The district court granted the motion without prejudice, and the former firefighter sought leave to file a third amended complaint. The district court, however, denied the motion to amend as futile and dismissed the complaint with prejudice. The district court held that his resignation email triggered the 300-day deadline for filing an EEOC charge, and that he missed the deadline by several days. The Tenth Circuit affirmed on appeal.

Reopen? The former firefighter then filed a motion to reopen the case and vacate the dismissal order. His motion was premised on newly discovered evidence under Rule 60(b)(2) and allegations of fraud under Rule 60(b)(3). The newly discovered evidence was a September 2023 email from a representative of the Fire and Police Pension Association (FPPA), and the former firefighter claimed the email supported his contention that his email of February 27, 2020, did not trigger the 300-day deadline; rather, it was triggered on March 2, 2020, the date the city determined to be his last day of work. The district court denied the Rule 60 motion, and he appealed to the Tenth Circuit again.

Last day of work and notice of resignation. The former firefighter argued that the newly discovered email demonstrated that the city, not the employee, determines the date of termination, and that he therefore did not in fact resign on February 27, 2020. The appeals court was unmoved, finding that the question of his last day of work is unrelated to that of when he gave notice of his resignation for purposes of the 300-day limitations deadline. The district court accordingly acted within its discretion in holding that the FPPA email was immaterial to its finding of futility based on the former firefighter’s February 27, 2020, notice of resignation.

The case is No. 24-1243.

Judge: Lucero, C.

Attorneys: David Perez, pro se. Charles T. Mitchell, Denver City and County Attorney's Office, for City and County of Denver.

Cases: DisabilityDiscrimination Discrimination Procedure ColoradoNews KansasNews NewMexicoNews OklahomaNews UtahNews WyomingNews