Free Findings of Fact & Conclusions of Law - District Court of Arizona - Arizona

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NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Ralph E. Ogden; Yuma County Sheriff's) ) Office; Yuma County, ) ) Defendants. ) ) Thomas J. Larios,

No. CV03-2285-PHX-SRB FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER

On July 15, 2005, the Court granted Defendants' Motion for Summary Judgment with 19 respect to Plaintiff's claims for age discrimination but found that there was a genuine issue 20 of material fact on Plaintiff's claim under the Americans with Disabilities Act (ADA). 21 Specifically, the Court found that there were genuine issues regarding Defendants' 22 satisfaction of their duty of reasonable accommodation. Not before the Court on summary 23 judgment was the question whether Plaintiff was a qualified individual with a disability 24 within the meaning of the ADA. Plaintiff's ADA claim was tried to the Court on December 25 13 and 14, 2005. By agreement of the parties, closing argument was submitted in writing on 26 January 4, 2006. Having considered the evidence the Court makes the following Findings 27 of Fact and Conclusions of Law. 28
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FINDINGS OF FACT

1. Plaintiff was employed by Defendants from 1995 until July 2002 as a Detention Officer. During his last three years as a Detention Officer he was assigned to fugitive warrants and extradition. 2. In July 2002 Plaintiff was demoted from his position as a Detention Officer and was assigned as a Security Control Officer. Plaintiff's demotion was as a result of insubordination. The hearing officer who conducted the disciplinary hearing recommended to the Sheriff that Plaintiff be terminated for his insubordination and some other performance issues. After conducting a final hearing, the Sheriff decided to demote Plaintiff rather than terminated him. Plaintiff's demotion was effective July 8, 2002. 3. Security Control Officers perform a variety of jobs in the Sheriff's Office. The primary distinction between the jobs of Detention Officers and Security Control Officers is that Security Control Officers have no direct contact with prisoners. 4. Plaintiff's assignment as a Security Control Officer was in the security control box in the jail observing prisoners. He worked in this position for two weeks and then went on medical leave. 5. During the time that Plaintiff was assigned as a Security Control Officer he was supervised by Lt. Penny Anders who assigned Security Control Officer Brenda Cross as his training officer. During the time of his training, Plaintiff complained to Officer Cross about difficulties he had seeing the control board and hearing the radio. Both Officer Cross and Plaintiff agreed that these two items were addressed by different lighting being provided in the security control box where Plaintiff was assigned and by an increase in the volume of the radio. Plaintiff also advised that he was in the process of obtaining hearing aids which would improve his hearing of the radio transmissions. 6. While Plaintiff testified at trial that his work in the security control box required too much standing and that he had difficultly seeing the board and hearing the radio, the evidence showed that the standing requirements for the position were within the Plaintiff's -2Case 2:03-cv-02285-SRB Document 69 Filed 03/01/2006 Page 2 of 7

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limitations. The position requires standing only about half of the time. The Security Control Officers in the security control box may be seated for at least half of their shifts. Plaintiff also conceded that the seeing and hearing difficulties were or would have been alleviated. The only other difficulty Plaintiff testified he had in performing the job was climbing the ship's ladder into the security control box. 7. While Plaintiff had complained about his difficulties seeing the board and hearing the radio, he never complained to Training Officer Cross or to Lt. Anders about any difficulties standing, walking or climbing the ship's ladder. When Lt. Anders met with Plaintiff toward the end of his training he did not re-state any complaints about the lighting or about hearing the radio. He made no other complaints about any limitations or difficulties in his abilities to perform the Security Control Officer job. His only complaint to Lt. Anders was about his shift. He asked if his shift could be changed due to transportation problems and a desire to coordinate his work schedule with his wife's work schedule. He also inquired about the possible transfer to a visitation position. The evidence was that Plaintiff did not have the typing skills required to perform the work of the visitation position. The only other Security Control Officer job he inquired about of Lt. Anders was in the laundry where there were no openings. 8. On August 5, 2002, the Plaintiff applied for and was granted Family Medical Leave Act (FMLA) leave. Shortly after going on leave, Plaintiff's physician sent an essential functions questionnaire to the Sheriff's Office stating that the Plaintiff was unable to perform the essentials functions of his Security Control Officer position. According to his physician Plaintiff "may not work at all in the stressful present work environment." 9. Plaintiff's twelve weeks of FMLA leave were exhausted on or about October 28, 2002. For almost the entire 12 weeks Plaintiff was on leave, he made no attempts to contact the Sheriff's Office. On October 16, 2002, he delivered a letter to the Sheriff indicating his desire to meet with the Sheriff "to discuss reinstatement of my job as a Warrants Officer or any position with the department that would allow me to perform the duties of that position." He further advised the Sheriff that his doctor would release him to work in a position that did -3Case 2:03-cv-02285-SRB Document 69 Filed 03/01/2006 Page 3 of 7

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not require prolonged periods of sitting, standing or climbing steep stairs, noting that the position he had after his demotion required long periods of standing plus climbing steep stairs. 10. The Sheriff testified that he did not interpret the October 16, 2002 letter as a request by Plaintiff for reasonable accommodation of his disability. He interpreted the letter as either a request to be reinstated to the position from which he had been demoted or to a new position that would include the duties that he previously performed before his demotion. Sheriff Odgen responded to this letter a few days later advising Plaintiff that he had directed Capt. Mitchell to audit available positions to determine if there were any that met Plaintiff's listed requirements and that he had found that there were none. The Sheriff asked that Plaintiff meet with Nora Mejia-Rico of Human Resources who could explain his options to him. 11. On October 31, 2002, Ms. Mejia-Rico left a message on Plaintiff's telephone to advise him that his FMLA leave had expired. Plaintiff did not respond or request the meeting the Sheriff had suggested. 12. Plaintiff and Ms. Mejia-Rico did eventually meet but it was after November 18, 2002, the date a notice of dismissal was delivered to Plaintiff advising him that he would be dismissed from employment if he did not respond to the notice of dismissal by Thursday, November 21, 2002. The notice of dismissal stated that the basis for dismissal was that Plaintiff's FMLA leave was exhausted, Plaintiff had no sick or vacation hours on the books and Plaintiff was not able to return to work to his former position as a Security Control Officer. Plaintiff requested a hearing. The hearing was scheduled for November 27, 2002. 13. On or about November 22, 2002, Plaintiff finally met with Ms. Mejia-Rico to discuss his options. She advised him that rather than be dismissed he could resign or he could continue with his due process and proceed with the scheduled hearing. Plaintiff never spoke to her about wanting a position within his medical restrictions. 14. The hearing on Plaintiff's dismissal was held on November 29, 2002. At the hearing, Plaintiff discussed his inability to perform the functions required for a Security -4Case 2:03-cv-02285-SRB Document 69 Filed 03/01/2006 Page 4 of 7

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Control Officer assigned to the security control box claiming he was unable to sit, stand or walk for any period of time. He again reiterated that he could perform his prior job in fugitive warrants and extradition. He stated he did not believe he could get his doctor's release to return to the job of Security Control Officer but could get one if he were given his former position again. At the conclusion of the hearing, the hearing officer determined that if at a later date Plaintiff produced a medical release to return to work he could apply for reinstatement "as a Security Control Officer with the Sheriff's Office as specified in County policy. Larios may also apply for any posted openings within the Sheriff's Office for which he meets the qualifications." 15. Prior to this determination, Plaintiff had personally and through his attorney demanded reinstatement to his former position in fugitive warrants and extradition. At the administrative hearing he again requested his old job back. He also spoke to the Sheriff requesting that he reclassify his former position so that he could have his old job back. 16. When Plaintiff completed his questionnaire for the EEOC's charge of discrimination in December 2002, he noted that he could perform the duties of "Warrants Officer" and in response to the question concerning what accommodations he sought Plaintiff stated "return me to the Warrants Officer." Plaintiff's notice of claim submitted to Yuma County alleged that his claim was based on discrimination and wrongful termination due to a younger and inexperienced person taking over his position as "Warrants Officer." 17. In March 2003, during an EEOC-sponsored mediation the central thrust of the mediation was a discussion of Plaintiff's desire to be reinstated as "Warrants Officer" or some other position which encompassed those duties. When the Sheriff said that Plaintiff would not be reinstated to the job from which he was demoted Plaintiff agreed to obtain an updated statement of his medical restrictions and look for other county jobs that might be within his restrictions. This was the first time Plaintiff agreed to consider any accommodations other than reinstatement to the position he held before his demotion. 18. When Plaintiff's updated medical information was received, the Sheriff responded with a letter outlining various positions for which Plaintiff might be qualified but Plaintiff -5Case 2:03-cv-02285-SRB Document 69 Filed 03/01/2006 Page 5 of 7

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choose not to pursue any of these positions. Plaintiff, through his counsel, again proposed bifurcating his former position into two separate positions. This proposal previously rejected, was again rejected by the Sheriff. 19. Even if no positions were available in the Sheriff's Office for which Plaintiff was qualified and physically able to perform, Veda Bishop, Human Resource Analyst for Yuma County, testified that the county personnel system would by-pass normal recruitment procedures when a disabled person seeks a job as an accommodation. She also testified that during the time period when Plaintiff could have been seeking another county job, Yuma County had available jobs but Plaintiff applied for none of them. The only job for which Plaintiff applied during this time period was a bailiff job for which he applied on his own in October 2002 before his FMLA leave expired. 20. As of April 23, 2003, the only job restrictions placed on Plaintiff by his physician were no climbing, no squatting and no more than four hours maximum standing. The Sheriff advised Plaintiff in writing about certain jobs that were within the Sheriff's Office and outside the Sheriff's Office that would meet these restrictions. None were pursued by Plaintiff. CONCLUSIONS OF LAW

1. Plaintiff has failed to prove that he is a qualified individual with a disability as defined by the ADA. He has not shown an impairment that substantially limits one or more of his major life activities. He has shown only that he is limited in his ability to stand for more than four hours, climb and squat. This is not the type of significant limitation that qualifies a person under the ADA. See, Toyota Motor Manufacture v. Williams, 534 U.S. 184, 197-199, 122 S. Ct. 681, 691-692 (2002). . 2. Plaintiff has also failed to prove that even if he were a qualified individual with a

disability that Defendants denied him reasonable accommodation. The accommodation sought by Plaintiff was not a reasonable one. The accommodation sought by Plaintiff at all times, including at trial, was reinstatement to a job from which he had been demoted for -6Case 2:03-cv-02285-SRB Document 69 Filed 03/01/2006 Page 6 of 7

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legitimate reasons. The record reflects that there were other jobs open within the county that Plaintiff did not pursue because Plaintiff wanted only his old job back; an unreasonable request for accommodation. 3. The Court finds that Plaintiff has not proved any violation of the Americans with Disabilities Act. ORDER IT IS ORDERED that judgment be entered in favor of the Defendants and against Plaintiff dismissing Plaintiff's complaint.

DATED this 1st day of March, 2006.

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