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January 6, 1994

JOHN FELDE, Plaintiff,
CITY OF SAN JOSE, Defendant.

The opinion of the court was delivered by: RONALD M. WHYTE

 Plaintiff John Felde ("Felde" or "plaintiff") and defendant City of San Jose's ("the City") motions for summary judgment and Felde's motion for leave to amend his complaint were heard on December 10, 1993. The court has read the moving and responding papers as well as the papers submitted by intervenors the International Association of Firefighters, Local 230 ("IAF") and the San Jose Police Officers' Association ("SJPOA") and heard the oral argument of counsel. Good cause appearing therefor, the City's motion for summary judgment is granted, and Felde's motion for summary judgment is denied. Felde's motion to amend is also denied.

 I. Background

 Felde, a former Deputy Chief of the San Jose Fire Department, filed the instant action to challenge the legality of the method used by the City of San Jose to determine plaintiff's reimbursement for unused accumulated sick leave when plaintiff retired. Plaintiff contends that the City's current practice, which differentiates between employees retiring on a regular service basis and those retiring on a disabled basis, violates the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA").

 Plaintiff retired from the San Jose Fire Department on January 7, 1993, on service-connected disability basis. Because plaintiff did so, he received a sick leave payout of only 80% of 1200 hours even though he had accumulated a greater amount of unused sick leave. This calculation was pursuant to Resolution No. 51871, as amended by an agreement between the City, the IAF and the SJPOA.

 Another resolution, Resolution No. 64214, adopted by the City on December 8, 1992, provides, in part, for payment to retirees for 100% of their accrued, unused sick leave if the retiree has accumulated over a minimum amount of unused sick leave, has over a certain amount of service in the retirement system, and retires on a regular, service basis. The City admits that it adopted this resolution to encourage disability qualified police officers and firefighters to continue working until they reach retirement age. Except for the fact that plaintiff retired on a disability basis, he qualifies for a full payout of his unused sick leave under this resolution. Two of plaintiff's fellow Deputy Chiefs retired on the same day he did. Because plaintiff's colleagues retired on a non-disability basis, their sick leave was calculated pursuant to Resolution No. 64214 and they received 100% of their accrued, unused sick leave.

 It is undisputed that under these two ordinances plaintiff received a proportionally smaller payout for unused sick leave when he retired on a disability basis than similarly-situated individuals who did not retire on a disability basis. It is also undisputed, however, that plaintiff could have retired on a regular service basis and that, prior to retirement, Felde was aware of both that fact and that Resolution No. 64214 applied to his position.

 Felde contends that the City's differentiation between disability and non-disability retirement benefits constitutes a violation of the ADA on its face and seeks, among other relief, payment for his uncompensated accumulated sick leave. Both plaintiff and defendant have moved for summary judgment. On October 8, 1993, this court granted the motions to intervene of IAF and SJPOA. Both IAF and SJPOA have filed briefs in support of the City's motion for summary judgment.

 II. Legal Standards for Summary Judgment

 Under Fed. R. Civ. Pro. 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The entry of summary judgment is mandated, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of roof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).

 III. Analysis of Discrimination Claim

 Plaintiff argues that the City's scheme violates the ADA as set forth in 42 U.S.C. §§ 12112(a)-(b). Section 12112(a) provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job ...

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