Earlier this month, the Montgomery County Court of Appeals
denied the FMLA objection of a firefighter recruit who was unable to complete
his training during his six-month probationary period because of a work-related
injury during that training. Geisel
v. Dayton, 2018-Ohio-512. The Court
found that the firefighter never requested or sought a FMLA leave of absence;
opting instead to take restricted duty with pay. It also rejected a workers compensation retaliate
claim. Rather, the Court found that the
Civil Service Commission was entitled to demote the firefighter to his EMT
position even though he was unable to physically perform those duties because
of the same injury.
According to the Court’s opinion, the firefighter took and
passed the civil service examination for the firefighter eligibility list. Thereafter, he was hired as an EMT and
presumably passed the probationary period for the EMT position. About two months after starting his
firefighter training, he injured his knee during training and was unable to
complete the training before his class graduated in June (following the
expiration of the eligibility list). The decision does not indicate how long he
was incapacitated. He apparently was
placed on restricted (i.e., light) duty. A month after the firefighter had been
injured, the Director recommended that he be demoted back to his EMT position
(even though he was temporarily unable to perform those duties because of the
same injury) and that decision took affect a few weeks later. Concerned that he would not be rehired as a
firefighters before he was age-restricted even if he took and passed the next
firefighter examination, he appealed the civil service decision.
As mentions, the Court rejected his argument that the
demotion violated the FMLA because he never sought nor took FMLA leave. Instead, he took restricted (light)
duty. Second, the Court rejected his
workers compensation retaliation claim.
Not only did he fail to allege a retaliatory motive, he never sought nor
obtained temporary total disability nor was demoted because of absenteeism
under Coolidge v. Riverdale Local School
District. Finally, the civil
service rules permitted the demotion of an employee who is unable to
successfully complete a probationary period due to injury.
While the Court implied that the age restriction might not
apply since he had been hired once as a firefighter and noted that he was not
restricted from reapplying for a firefighter position, it observed that he:
had six months from the date of his appointment to
Firefighter Recruit in which to “qualify,” or in other words, to complete his recruit
training. The rule does not invest an employee
who fails to qualify during this six month period with the right to make
subsequent attempts without interruption, meaning that Geisel’s appointment to
Firefighter Recruit was, in plain language, a one-shot opportunity.
NOTICE: This summary is designed merely to inform and alert you of
recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
