Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
A Palm Beach firefighter terminated for abusing his sick leave and then lying about it has lost his bid in federal court to claim that the department failed to properly accommodate his diabetic condition.
Paramedic Roger Dale Corbin, a 17 year veteran, was terminated for calling in sick on August 5, 2011, and fabricating a story about being home when he was in fact in Georgia staying with relatives and visiting Six Flags.
Palm Beach Fire Rescue’s sick leave policy states:
When an employee is not able to report for work on account of injury or illness, the employee or a member of his/her household will notify the supervisor or department office by telephone or messenger as soon as it is determined that the employee will be absent from work, but no later than the start of his/her shift … Unless the employee’s supervisor or department office is so notified, no sick leave will be approved except in unusual cases.
The Town Clinic may be requested to send a nurse to call on the absent employee. If such employee is not at home when the nurse calls, no sick leave will be approved except with the approval of the Town Manager. The nurse will make a written investigation report to the Director of Human Resources and will submit a copy of the written report to the department director.
Prior to leaving their place of residence, employees on sick leave shall call their assigned station and notify the on-duty officer of their intended activity and/or destination. This information shall be recorded in the station journal.
According to the court:
[Corbin] had been counseled previously for “tagging on” sick time either before or after another day off and “linking” sick days to vacation. He had been warned previously that he was subject to a call from a supervisor or nurse to confirm a sickness.
On August 2, 2011, Plaintiff rented a car from Enterprise Rent-a-Car. …
He and his family drove to his grandparents’ house in Macon, Georgia. … The rental car agreement shows that Plaintiff intended to return the car on Saturday, August 6, 2011 at 11: 00 a.m. …
Plaintiff testified that he planned to drive the rental car to work for his shift on Friday, and return it Saturday when he got off shift, because the rental car used less gas and was easier to drive than his SUV. … At 10:09 p.m. on August 4, 2011, Plaintiff was still in Macon, Georgia. He remained there with his family until late Friday, August 5, because he was ill with a fever, stomach ache, vomiting and diarrhea, which was exacerbated by his diabetes, and the illness prevented the family from driving back to Florida. … He had spent the entire Friday at Six Flags park.
On the day Plaintiff had called out sick [August 5], assistant chief Atwater conducted a verification visit to Plaintiff’s residence. … He arrived at Plaintiff’s home at approximately 4: 00 p.m. the afternoon of August 5, 2011. He rang the doorbell and no one answered. … Atwater called Plaintiffs cell phone and did not receive an answer. He left a message for Plaintiff to call him. … Atwater then called the Town to get Plaintiffs wife cell phone number and called that number at 4:40 p.m.
Plaintiffs wife answered the telephone and told Atwater that she had just arrived home and that Plaintiff was at home, sick and asleep. … Atwater then requested to speak with Plaintiff. … when Plaintiff answered the telephone, Atwater told Plaintiff he had been trying to reach him and Plaintiff responded that he must have been in the bathroom or sleeping. … Atwater advised Plaintiff he was in Plaintiffs driveway and directed him to come to the door or window so that he could verify that Plaintiff was home. … Plaintiff replied, “I cannot do that.” Plaintiff then “clicked off’ the telephone. Atwater called back on Plaintiffs wife’s telephone and left a message for Plaintiff to call him back, but he did not call him back. …
Atwater reported Plaintiffs behavior to the director of public safety who ordered Palm Beach detectives to monitor the home to determine if Plaintiff was home. … The house stayed under surveillance until Plaintiff returned the following day – August 6, 2011.
On Saturday, August 6, 2011, Atwater visited Plaintiffs home at 11:40, knocked on the door and rang the doorbell but got no response. He again
tried to contact Plaintiff on his and his wife’s telephone, leaving messages to return his call. Plaintiff did not answer the telephone and never called back.…
At approximately 8:45 p.m. on August 6, Plaintiffs wife and their two children drove into the place of residence, without Plaintiff. Plaintiffs wife told detectives that Plaintiff had been home sick for two days straight. … Plaintiff came out of his home and asked why the police were at his house. Plaintiff told them he had been home sick, but was now feeling better. …Later, during the administrative investigation, he stated that his wife dropped him off on the block behind his house, and he cut through rear properties to enter his home from the rear.
Plaintiff stated that while he was driving back from Georgia, he remembered a party at a park behind his house and he decided he wanted to go. His wife dropped him off on the block behind the house. He had recovered and was well enough to attend the party and decided to go there at 8:45 pm, rather than going home with his wife and children upon the return from Georgia.
Corbin was fired and filed suit alleging he was being discriminated on account of his diabetes. He claimed the diabetes contributed to his illness on August 5, and pointed to two other Palm Beach employees who were caught out of their homes while off sick who received brief suspensions. He argued that because they were both non-diabetics he was being treated differently on account of his diabetes.
Judge Kenneth Marra of the US District Court for the Southern District of Florida concluded that the two employees given brief suspensions were not similarly situated to Corbin because they had not lied about their whereabouts when confronted. “Even under [Corbin’s own] version of the facts, his behavior can only be seen as insubordinate and deceitful.” The court continued:
[Palm Beach Fire-Rescue] was certainly entitled to draw the conclusion, based on Plaintiff’s behavior, that Plaintiff was being deceptive and refusing to follow commands as required in a paramilitary organization.
Based on this evidence, the Court finds that Defendant has met its burden of production with respect to establishing a non-discriminatory legitimate business reason for terminating Plaintiff.
Corbin also argued that he should not be terminated because he complied with the department’s sick leave order since his “residence” while he was sick was his grandparent’s home in Georgia, where he remained while ill. He also “contends he was singled out for a verification visit and received greater scrutiny because of his diabetes”. The court responded:
[Corbin’s] … interpretation [is] not based on any record evidence; namely, that his residence was Georgia and not his home in Florida because he became sick in Georgia and that therefore he did not leave his residence when he became sick. Putting aside what would be the purpose of a sick leave rule with Plaintiffs interpretation, Plaintiffs interpretation is not based on any record evidence and is nothing more than conjecture and speculation. …
Merely by offering a novel interpretation of the Fire Rescue Department’s policy, he has not shown that Defendant acted with a discriminatory motive by finding that Plaintiff did not comply with the sick leave policy. …
Plaintiff claims that it was improper for Defendant to send anyone other than a Town nurse to verify he was home when he called out sick. There is, however, nothing in the policy that prohibits a department supervisor from conducting the verification visit. Furthermore, the record evidence demonstrates that, shortly after his appointment to the position of Director of Public Safety, Blouin met with all Fire Rescue employees and informed them that he would send supervisors to check up on staff calling out sick
to assure they were at home. Likewise, there is no prohibition on calling Plaintiffs wife when trying to locate him. …
Plaintiff has not shown, as a matter of law, that the verification visits were being used against diabetics as opposed to chronic sick leave abusers. Nor has Plaintiff shown how this rule impacts diabetics differently.
Lastly, the Court cannot find as a matter of law that the challenged sick leave policy is inconsistent with business necessity. Because there is record evidence demonstrating that abuse of sick leave has been a chronic problem in the Fire Rescue Department, the Court cannot rule, as a matter of law, that a policy that ensures that fire fighters and paramedics do not violate sick leave policy is not a business necessity. As stated by one court, violations of sick leave not only “drains public funds” but has the potential to “disrupt vital services.”
Judge Marra granted the town summary judgment, but continued the matter for further consideration of the disparate impact claim.
Here is a copy of the ruling. Corbin v Town of Palm Beach
