Court Rules No Duty To Create Light Duty Position for Injured Battalion Chief

An Alabama battalion chief who was unable to return to full duty after a motor vehicle accident and a separate work-related injury, has lost his federal court lawsuit alleging the city discriminated against him. BC Jay Hawthorne filed suit last year against the City of Prattville, claiming the city ’s failure to accommodate his light duty needs constituted both disability and age discrimination.

  • On March 31, 2017, Hawthorne injured his neck in a non-work-related car accident for which he ultimately underwent surgery.
  • Beginning October 23, 2017, the City provided Hawthorne with light-duty clerical work in 8-hour daily shifts as a temporary accommodation while he continued to recover.
  • During the time that Hawthorne was working in the temporary light-duty position, his battalion chief duties were performed by Captain Josh Brown as acting battalion chief.
  • On April 19, 2018, [City HR Director Lisa Thrash] emailed Hawthorne to advise that the temporary accommodation would end on April 21, 2018 and that the City would continue to accommodate him through his use of leave time, or alternatively, he needed to retire.
  • Hawthorne… did not want to use his accrued leave or retire, so he convinced his doctor to allow him to return to work full duty, with no limitations.
  • Hawthorne returned to work full duty, per his physician’s release, on May 2, 2018.
  • The day of his return, Hawthorne participated in a quarterly physical exercise evaluation and afterwards complained of pain and numbness in his neck that radiated through his shoulder.
  • As a result, he visited the City’s workers’ compensation physician, was diagnosed with a muscle strain, and was released back to work with a lifting limitation of 15 pounds.
  • The City scheduled Hawthorne to return to work on May 20, 2018, on a 24-hour shift, restricted-duty status, based on the medical restrictions placed on Hawthorne by his physician.
  • According to the City (Thrash), their logic was several-fold — Hawthorne could be effective in assisting shift members in his battalion with their reports, it was in his best interest to return to the shift to which he was most accustomed, and he would soon recover from his muscle strain.
  • The City’s duty restrictions were outlined in a letter dated May 14, 2018, and included, among others, “no operation of department vehicles,” “no responding to incident or emergency scenes,” and “no lifting over 15 pounds.”
  • The vehicle use restriction was concerning to Hawthorne because the City had never placed this restriction on other employees who had medical restrictions.
  • According to the City, this restriction was not because of Hawthorne’s medical condition, but instead was because Hawthorne was not performing the duties of a battalion chief.
  • Another concern for Hawthorne was that he was placed under the direction of Captain Josh Brown who was serving as acting battalion chief, even though Hawthorne held a senior rank. Hawthorne believed this was egregious because the City took away his accommodated light-duty position as a battalion chief and placed him underneath a subordinate rank employee.
  • Of all the new restrictions, the 24-hour shift requirement was the most problematic for Hawthorne.
  • According to Hawthorne, because of his medical condition, his physician recommended that he sleep on a “regular bed” (that is, his own bed at home), instead of a cot at the station. Hawthorne believed he should have been permitted to work only reduced 8-hour shifts and stay at his own home at night.
  • Upon hearing of Hawthorne’s complaint about the cot and the need to sleep at home instead of completing the 24-hour shifts like everyone else, Thrash confirmed that the City in fact provided regular beds with memory-foam mattresses, not cots, for 24-hour shift personnel such as Hawthorne.
  • Thrash also contacted Hawthorne’s physician for more information about the cot issue.
  • During their conversation, the physician clarified that the regular bed request was “not a medical restriction” but instead a suggestion based on Hawthorne’s statement to him that the City was “having him sleep on a cot in the fire department” and that Hawthorne “was unhappy with sleeping at the station.”
  • For Thrash, this was problematic because this “was a 24-hour shift” and it was inaccurate for Hawthorne to claim that he was sleeping on a cot.
  • From Thrash’s point of view, Hawthorne was “very angry that he was working a 24-hour shift” and “he did not want to do that.”
  • Dissatisfied with the new restrictions and the City’s refusal to allow him to work a reduced 8-hour schedule, Hawthorne retained legal counsel.
  • Hawthorne filed this lawsuit on February 21, 2019, alleging age and disability discrimination and retaliation.
  • Hawthorne claims he was denied a reasonable request for an accommodation, was replaced as battalion chief by a younger, non-disabled individual, was treated less favorably than younger individuals, and was retaliated against for filing, through counsel, an internal complaint of discrimination and the EEOC Charge.
  • Among the discriminatory and retaliatory actions taken by the City of which Hawthorne complains:
    1. he was not allowed to drive a fire department vehicle as was customarily afforded to battalion chiefs;
    2. he should have been allowed to return to the 8-hour light duty position as a battalion chief following his on-the-job injury instead of the 24-hour shift that was customarily required of battalion chiefs;
    3. he should have been allowed to go home every night;
    4. he should have been given a position as an administrative battalion chief; or have been demoted to another position;
    5. he should not have been put under the supervision of an individual who was younger and of a lower rank;
    6. he was removed from the duty roster in an effort to humiliate him; and
    7. employees joked about him because he was taken off the duty roster.
  • On September 17, 2019, Hawthorne notified the City of his retirement due to his work-related injury that prohibited him from being heavy-duty rated as required for his battalion chief position.

Last week US District Court Judge R. Austin Huffaker, Jr. granted summary judgment in favor of the city. Judge Huffaker concluded the city did not have a duty to create an administrative battalion chief’s position to accommodate Chief Hawthorne’s disability, not allow him to sleep at home. He also found no evidence that Chief Hawthorne’s age was associated with an adverse employment action. As explained in the decision:

  • Here, Hawthorne states that a reasonable person “might well have been prevented from filing a charge of discrimination if he knew he was going to be treated in the horrible manner the City treated Mr. Hawthorne, after his 27 years of service.”
  • Apparently, this horrific treatment included the City’s promotion of Captain Bingham to Hawthorne’s battalion chief position and assignment to Hawthorne’s office, having Hawthorne answer to Captain Bingham and Brown despite Hawthorne having seniority in rank over them, being required to work a 24-hour shift instead of being allowed to go home and sleep in a familiar bed, being required to perform administrative work at his station, not being allowed to drive department vehicles, being forced to work in a cold and hostile work environment, and forcing him home on workers’ compensation leave at a reduced income rate.
  • Most of these so-called adverse employment actions are not actionable.
  • Hawthorne also claims that he was discriminated against by way of joking remarks made to him by his co-workers.
  • [T]his assertion easily fails for lack of a tangible impact on the terms and conditions of employment.
  • Although Hawthorne may be able to show that his forced workers’ compensation leave was an adverse employment action, and that he was replaced by a younger person (Captain Bingham), Hawthorne cannot meet the third prima facie element establishing that he was qualified to perform the job of a battalion chief.
  • Hawthorne’s admitted inability to perform the job duties of a battalion chief also serves as a legitimate, non-discriminatory reason for Hawthorne’s termination, if his separation is characterized as such.

Here is a copy of the ruling:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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