In 2005, the plaintiff informed
the Chief of his Parkinson’s diagnosis and that he did not require any
restrictions or accommodations. Thereafter,
his supervisor, the assistant chief, conducted internet research and in 2008 reported concerns about the
plaintiff’s abilities to the Chief relating to his gait, fatigue, forgetfulness
and increased hand tremors. The
plaintiff was requested to submit to a number of medical examinations to
determine his fitness for duty. His neurologist released him to work without
any restrictions, but noted that his abilities might fluctuate.
Six months
later, the plaintiff was again requested to be evaluated due to perceptions that his
condition had deteriorated. This time,
he was evaluated by a physician chosen by the employer. This physician put only two restrictions on
the plaintiff (to avoid fall hazards and confined spaces), but also recommended
further evaluation by a Cleveland Clinic neurologist (who released the
plaintiff to work without any restrictions).
Because the prior restrictions were essential job functions, he was
confined to light duty or paid sick leave pending his release to return to
work. He could not earn overtime compensation while he was medically restricted.
In the meantime, the City elected
to abolish the Battalion Chief position and demote the two incumbents to
Captain or give them the option to retire.
The plaintiff accepted the demotion, but unsuccessfully appealed the
abolishment of his position. Ten months
after being reinstated to work, he did not pass his annual fitness for duty
examination in May 2010 by the employer’s physician. In particular, the doctor concluded that the
plaintiff
was unable to perform the essential functions of performing fire-fighting
tasks including wearing a breathing apparatus, climbing six or more flights of
stairs, wearing heavy, insulated protective gear, searching, finding and rescue
dragging, dragging water-filled hoses, climbing ladders and operating from
heights, and unpredictable physical exertion.
The Cleveland Clinic neurologist agreed with
this conclusion. Accordingly, the
plaintiff utilized his accrued sick leave until his retirement in 2011.
The plaintiff claimed that he suffered
adverse employment actions because his employer perceived him as disabled when
he was able to perform his job. In
particular, he was placed on light duty and leave twice, denied overtime, and
subjected to a number of physical examinations over a two year period. The City countered that his job required him
to demonstrate “the ability to work under pressure or in dangerous situations, to keep physically fit, to use
fire-fighting equipment, . . . “ and
other physical demands, such as ““climbing, balancing, stooping, kneeling,
crouching, crawling,reaching, handling, seeing, hearing, [and] smelling.” The Court concluded that the City was
justified in relying on the medical professionals it retained in evaluating the
plaintiff’s abilities.
In addition, the Court placed great reliance on the
discussion of Parkinson’s in the National Fire Protection Association
guidelines:
Parkinson’s and other diseases with functionally
significant tremor or abnormal gait or balance compromise the member’s
ability to safely perform essential job tasks 1, 2, 4, 6, 7, 8, and 9, and the
physician shall report the applicable job limitations to the fire department.
(Emphasis added.)
The Court concluded that the City’s requests for
medical examinations and ultimately removing him from duty was reasonable in
light of his condition and the medical evaluations:
Reviewing the chain
of events, including his placement on leave and eventual retirement, we cannot
find that appellant has created a prima facie showing of “regarded as disabled”
disability discrimination. As noted by appellant’s neurologist, Dr. Leslie, in
November 2008, “fluctuations in his abilities may fluctuate” and the disorder
is progressive in nature. It was entirely reasonable to find changes in
appellant’s abilities within a span of six months to a year. This also
supported a close monitoring of appellant’s functioning, including physical
examinations. Appellant’s first assignment of error is not well-taken.
The Court also rejected the plaintiff's retaliation claim on the grounds
that the City's actions were justified and another court had upheld the abolishment of
his position (and that of a non-disabled Battalion Chief) as justified by
economic conditions.
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 change or
be 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.
