A Massachusetts Sheriff’s Office is appealing a decision by the state’s Commission Against Discrimination, after the hearing officer ruled that the agency discriminated against a female employee who suffered from asthma.
The decision was handed down in late August, but the Middlesex Sheriff’s Office has just now confirmed their decision to appeal.
The Americans With Disabilities Act, which applies to state and local governments as well as private employers in companies of more than 15 people, makes a number of requirements with regard to workers who have disabilities. The law says public entities are required to make reasonable modifications to policies, practices and procedures where necessary in order to avoid discrimination. The exception to this would be if the agency can show that doing so would fundamentally alter the nature of the program, activity or service that’s being provided. They also have an out if doing so would result in “undue” administrative or financial burdens.
In this case, the commission, in a 54-page decision, determined that the sheriff’s office had not met its burden in regard to a corrections officer who had been with the agency since 1990.
By all accounts, the plaintiff had been a model corrections officer. She was elected president of her training class, and had worked her way up the ranks. By 2006, she had become a grade 15 utility correction officer.
The job description of a corrections officer is to provide custodial care of inmates, patrol, observe behavior, subdue disturbances, investigate suspicious behavior, take head counts, prepare reports, make referrals and make sure the facilities are clean and safe.
The plaintiff had been diagnosed with asthma in 1991. This condition, when not controlled, is known to cause wheezing, chest tightness and difficulty breathing. The plaintiff had been reportedly hospitalized multiple times over the years (1994, 1995 and 1996) for asthma attacks. Once, she was reportedly hospitalized for nearly two weeks, and another time reportedly had to be placed on a ventilator.
When her asthma was under control, records show that she was able to carry out all of her full-time duties, including working outdoors. The only difficulties she was reported to have experienced were when she was outside in cold weather for extensive amounts of time. Records show she wasn’t affected by pollen allergies but had issues during periods of prolonged exertion in wintry, damp weather.
According to the case records, her supervisors were aware of her asthma, and generally, up until the time period in question, had not had an issue with it, as she tended to spend most of her time in heated vans, courthouses and other indoor structures.
Then in 2005, the plaintiff allegedly left her firearm in a bagel shop after she had removed her service belt to use the restroom. As a result, records indicate she was suspended for 30 days.
But as a result of the incident, records show her gun permit was revoked. Consequently, she was reportedly removed from her post in transportation, as it had required her to carry a gun. Records show she was told she could re-apply for her post in six months. But she was reportedly denied the opportunity to go back, and instead, was reassigned to a position in which she was required to check vehicle credentials, secure the entrance area, log vehicles in and inspect vehicles as they entered and left the facility.
Records show this position required her to be outdoors – in the cold weather – for 95 percent of the time. According to her statements in the case, she repeatedly requested a position where she could work indoors, as her asthma continued to get worse.
However, she claimed she was repeatedly denied or ignored. When she filed a complaint with the state commission, she said her employer pushed her to accept disability retirement, without conceding to a reasonable request for accommodation.
The hearing officer determined this was an act of retaliation.
The sheriff’s office was ordered to give her back her position, pay her back wages and give her $75,000 for emotional distress.
The Brown Law Firm, LLC, has offices in Belmont and Boston. For a free and confidential consultation, call 617-489-0817 or contact us online.
Donnalyn Sullivan v. Middlesex Sheriff’s Office, Aug. 20, 2012, Commonwealth of Massachusetts Commission Against Discrimination
Hearing Officer: Middlesex County Sheriff’s Office Discriminated Over Asthma, Sept. 24, 2012, Medford Patch
More Blog Entries:
EEOC Targets Workplace Discrimination, but Class Action May Not Be The Way to Go, Sept. 12, 2012, Boston Employment Lawyer Blog