United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION GRANTING MOTION FOR
CAMPBELL, U.S. District Court Judge
Salt Lake City (SLC or the City) along with individual
Defendants Chris Burbank and Melody Gray have filed a Motion
for Summary Judgment asking the court to dismiss former SLC
police officer Robert Kohl's claim alleging that the
Defendants violated his rights under the Americans with
Disabilities Act (ADA). Mr. Kohl contends that the
Cityfailed to accommodate his learning
disability, which impaired his ability to write clear
incident reports. One such report gave rise to an internal
affairs (IA) investigation and pre-disciplinary hearing,
after which he resigned.
assert that Mr. Kohl has not established a prima facie case
of failure-to-accommodate because he has not provided
evidence to support his claim, and, additionally, the
requested accommodation was not plausibly reasonable. For the
reasons set forth below, the motion is granted.
must grant summary judgment when the moving party
“shows that there is no genuine dispute as to any
material fact” and that party “is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Summary judgment should not be granted “if the dispute
about a material fact is ‘genuine, ' that is, when
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Birch
v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir.
2015). A factual dispute is genuine when “there is
sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way.” Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.
1998). The court must draw all reasonable inferences from the
record in favor of the nonmovant. Id.
Kohl was a police officer with SLC Police Department from
March 11, 2001, until December 12, 2010, when he resigned
from the Department. He has dysgraphia, a learning disability
that makes it difficult for him to draft written reports
necessary for his job, including arrest reports, such as the
September 20, 2010 police report at issue here.
beginning of his tenure with SLC, he participated in the
Department's officer field training program. During that
period, he notified his field training supervisors that he
had “a difficult time writing and spelling” and
asked them to review his reports and “send [them]
back” for clarification or corrections if the reports
sounded or looked “weird, ” contained
misspellings, or had grammatical or other similar problems.
(July 7, 2017 Dep. of Robert Kohl, attached as Ex. C to
Defs.' Mot. Summ. J., at 44, 50-51, ECF No. 31-3.) At his
request, they reviewed his reports and returned them if
necessary so he could make corrections.
he completed his initial training, he told each new
supervisor about his disability and requested the same
review. He says he was accommodated until he
submitted his September 2010 report (discussed in detail
20, 2010 Arrest and Use of Force Incident
September 20, 2010, Mr. Kohl and a fellow officer were
involved in a scuffle with a young man they later arrested
for possession of cocaine with intent to distribute. What
occurred during that scuffle and what Mr. Kohl wrote in his
arrest report prompted the events leading to Mr. Kohl's
resignation. (See Sept. 20, 2010 SLC Police Dep't Gen.
Occurrence Hardcopy (“Police Report”), attached
as Ex. A to Defs.' Mot. Summ. J., at 6, ECF No. 31-1.)
September evening, Officer Jaron Harker was patrolling in
downtown Salt Lake City in an area known for drug
trafficking. Along one block, as he drove by, he noticed
approximately twenty individuals, nearly all of whom glanced
in his direction as he drove by in his police car. But one
man did not, and that caught Officer Harker's attention.
He watched the man slowly walk down the sidewalk and then
pulled his police car behind the man.
out of his car and started a conversation with the man,
during which Officer Harker noticed a bulge in the man's
upper left cheek that prevented the man from speaking
clearly. He asked the man if anyone had asked to purchase
cocaine from him. When the man evaded the question, Officer
Harker asked what was in his mouth, to which the man
responded by “shuffl[ing] something in his left cheek
and ma[king] a swallowing motion.” (Id. at 8.)
prevent the man (who Officer Harker suspected was a drug
dealer) from possibly destroying evidence, Officer Harker
grabbed the back of the man's neck in an effort to stop
him from swallowing the object in his mouth. He also
attempted to forcibly lower the man to the ground while
telling him to spit out whatever was in his mouth. The man
disobeyed and instead tried to escape from Officer
Harker's grasp, at which point the two of them
“spun in circles several times as [the man] struggled
to get away from [Officer Harker].” (Id. at
point during Officer Harker's struggle with the man,
then-Officer Kohl arrived to help. Officer Harker, in his
report, described the events involving Mr. Kohl in detail:
Officer Kohl arrived as the tussle began and quickly came to
my aid as we got him to the ground. Officer Kohl held his
lower half as I pushed on his mouth while telling him to spit
out the drugs. Eventually the subject opened his mouth and
spit out multiple crack twists (individually wrapped
crack-cocaine rocks packaged for sale). It seemed he was
still trying to swallow, I warned him we would punch him in
the stomach to assist him if he did not spit out the crack.
He did not comply with our warning, Kohl delivered a strike
to his stomach area. Incident to the strike two more crack
rocks were blown from his mouth. Still unsure if there was
more in his mouth due to movement with his tung [sic] I
delivered one more push on his stomach not getting anything
else out. A total of 17 crack rocks were collected.
(Id. (emphasis added).) Mr. Kohl's written
account of the incident matched Officer Harker's:
The subject was spinning around and about Officer
Harker's person actively trying to break free from his
very firm grip. I then helped thrown [sic] this person to the
ground. He landed on his back while Officer Harker was
holding his face yelling at him in Spanish. Officer Harker
said, “Spit it out, spit it out.” I placed my
right knee in this person's mid-section to hold him still
and pressed down quickly in an attempt to force out the
things in his mouth. After a moment ten or more small white
plastic wrapped squares were spat from his mouth. These items
look to be packaged drugs. I was fearful he was trying to
swallow other drugs which were in his mouth. Officer Harker
yelled, “Are there more? Spit them out!”
I then said, “If you do not spit them out I will punch
you in the gut.”
The subject did not move his body or mouth. He lay still. I
told Officer Harker, “Tell him in Spanish.”
Officer Harker said something in Spanish and the subject did
not move his lips or body. I then punched him one time with
my right fist in the center of his abdomen. The person then
immediately spit out two more square plastic wrapped
suspected drug bindle[s] (see Crime Lab photos). He was then
rolled over, I called for an arrest check, we then secure him
in hand cuffs.
(Id. at 6 (emphasis added).)
the officers arrested the man, they requested an
“arrest check” from their supervisor, Sergeant
Stefhan Bennett. During an arrest check, a Department
supervisor speaks with both the arresting officers and the
detained individuals to determine, among other things,
whether probable cause exists to take the suspect into
custody and whether any medical attention is required.
Sergeant Bennett did not witness the incident involving
Officer Harker, Mr. Kohl, and the man, so he had no
first-hand knowledge of the encounter. Rather, his
understanding of the situation came from the information
Officer Harker and Mr. Kohl gave to him during the arrest
check and from his later review of Officer Harker's and
Mr. Kohl's police reports.
the arrest check, Officer Harker and Mr. Kohl told Sergeant
Bennett they had been in a scuffle with the man and, in the
course of that scuffle, the man had spit out balloons
containing narcotics. The officers described the incident in
generalities. But when Sergeant Bennett read Officer
Harker's and Mr. Kohl's police reports later that
night, he became concerned because the reports contained
additional facts regarding the type, timing, and purpose of
force used by Mr. Kohl, details that did not come up during
the officers' on-scene discussion with Sergeant Bennett.
(Dep. of Stefhan Bennett, attached as Ex. B to Defs.'