Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s Burning Question: I’ve been a dispatcher for 10 years. Two years ago I developed a medical condition that causes me to fall asleep at work. I was counseled and disciplined several times for falling asleep. The last time the department gave me a Last Chance Agreement, the terms of which prohibited me from challenging the Last Chance Agreement. Here is what it said:
Employee agrees not to appeal or otherwise challenge the voluntary nature of this Last Chance Agreement, or bring any related claim against the Village in any forum, including, but not limited to: the negotiated grievance/arbitration process, the Equal Employment Opportunity Commission, the Ohio Civil Rights Commission, and/or any federal or state court.
As part of the agreement I had to go for a fitness for duty examination, which I passed. Afterwards the department told me I had to pay for the exam – but that was never agreed to as part of the Last Chance Agreement. Then the department garnished my wages without my consent to pay for the exam. My union filed a grievance on my behalf and on advice of counsel I filed a discrimination complaint with the EEOC over the fact that I was being made to pay for a fitness for duty exam. Shortly thereafter I was terminated – allegedly because by filing the grievance and with the EEOC, I breached the Last Chance Agreement.
Isn’t that retaliation? Oh, and one more thing, I applied for another dispatcher job and the department passed along confidential medical information that led me to not be hired… Can they do that?
Answer: I thought you were going to ask if staying awake was an essential function of being a dispatcher… and whether the department failed to provide you with a reasonable accommodation… but it sounds like you have a considerably stronger case of retaliation for having filed an EEOC claim and plus a HIPAA violation…. And maybe even more.
James Luonuansuu was a dispatcher for the Lordstown, Ohio Police Department until June 7, 2011 when he was terminated for violating the terms of a last chance agreement that prohibited him from bringing “any related claim” “in any forum”.
He filed suit last month in US District Court alleging unlawful retaliation under state and federal law. Here is a copy of the complaint: Dispatcher Sleeping
Just so we are clear… at the end of the day a dispatcher has to be able to perform the essential functions of the job – and for a dispatcher one of them is probably being able to stay awake!!! Not sure what sort of reasonable accommodations could be made for that… The employer would be under an obligation to engage in an interactive process to help find one… However, in this case that’s not really the issue any more. The issue is how the village responded to his EEOC complaint and the release of confidential medical information.
And while an employee can agree not to file a grievance over a contractual violation as part of a last chance agreement – a collective bargaining grievance is not personal right the employee has control over – it belongs to the union. In fact, the employee really has no say in whether the union does or does not file a grievance on behalf of the employee… The employee can ask… but they control the grievance and the union is not bound by that agreement (unless they were a party to it). So it would be hard (not to mention inappropriate) for the village to hold an employee responsible for what the union chose to do.
Oh, and one more thing… many courts will not honor last chance agreements that are longer than six months… one year is about tops… and according to my calculations Luonuansuu was terminated a year and a day after he signed the last change agreement…
Sounds to me like perhaps the village had a non-employment non-labor law attorney advising them on this one.
