Gaither v. Anne Arundel County

MOTZ, Judge. Appellant, Alfred Gaither, has been employed by appellee, Anne Arundel County (County), for many years. In 1989, Gaither was demoted from a grade 14 position, senior water plant operator, to a grade 9 position, utilities maintenance worker. On appeal, the Personnel Board of Anne Arundel County (Board) rejected Gaither’s claim of handicap discrimination and upheld his demotion; the Circuit Court for Anne Arundel County (Rushworth, J.) affirmed that decision.

In 1978, while classified as a water plant operator in the Department of Utilities, Gaither was injured in a job related automobile accident and sustained injuries to his neck and back. Found to have a 1272% permanent disability by the Workers’ Compensation Commission, Gaither returned to work but was placed on “light duty” status. In 1985 Gaither was reinjured on the job. As a result of this second accident, the Workers’ Compensation Commission determined that Gaither suffered an additional 272% permanent disability.

After this second accident and until 1989, Gaither again returned to work in the same “light duty” status. 1 ⁵⁷⁴ In 1988, in response to scheduling problems, the Chief of the Bureau of Operations for the County Department of Utilities requested that the Personnel Department conduct desk audits for ten Utilities employees on “light duty” assignment. Gaither held one of these positions. The audits were designed “to identify specifically what ... roles [employees] were filling ..., and to determine from that what the proper grading of [each] position would be.” As part of this desk audit, Gaither was asked to complete a job description form. On the form, Gaither listed his responsibilities as well as the amount of time he spent performing each duty.

From the job description form as well as an on-site inspection of Gaither’s performance by a personnel analyst, the Personnel Department determined that Gaither was not performing the duties of a water plant operator and, subsequently, decided that his position should be reclassified to a utilities maintenance worker at pay grade 9. In June of 1989, Gaither was informed of the result of the desk audit. Gaither was given 60 days to search for another position in the County. When Gaither did not submit an application for another position, he was given the choice of accepting a demotion to utilities maintenance worker or being terminated.

In August 1989, Gaither accepted the position of utilities maintenance worker with a corresponding decrease in salary of approximately $5,000 per year. Thereafter, Gaither challenged the reclassification and filed a grievance with the Board. Further facts are set forth within as necessary. ⁵⁷⁵ The Board upheld Gaither’s demotion within the County Department of Utilities. Gaither then appealed this decision to the circuit court, which affirmed the Personnel Board’s decision.

Gaither raises the following questions on appeal: 1. In view of Anne Arundel County Code, art. 8, § 1-201(b), must all fresh water treatment plant operators employed by Anne Arundel County be able to lift 50 lb. bags of lime on a day-to-day basis, or is the Circuit Court’s finding contrary to what is truly a bona fide occupational qualification for fresh water treatment plant operators? 2. Could the Personnel Board and the Circuit Court find under applicable authority that the County could so summarily abandon its ten year old job functions accommodation of Gaither without violating its statutory duty under Md.Ann.Code art. 49B and COMAR 14.03.02.05 to extend reasonable job accommodations to handicapped employees? 3. Did the Personnel Board and the Circuit Court err as a matter of law when they cast upon an employee the burden to demonstrate that his physical disability could be accommodated through reasonable effort or expense on the part of Anne Arundel County, rather than demand that the County first attempt to prove that it cannot so accommodate the employee? 4.

Did the County act arbitrarily and capriciously in violation of Montgomery County v. Anastasi, 77 Md.App. 126 , 549 A.2d 753 (1988) when it changed Gaither’s classification in 1989 after having approved that classification in 1985 based upon the same facts? 5. Under Anne Arundel County Code, art. 8, § 1-205, may the County reduce the wages of an employee who is “reclassified” in position after a desk audit and not demoted for misconduct or other reasons of discipline? ⁵⁷⁶ (i) In reviewing the Personnel Board’s order upholding Gaither’s demotion, we apply the substantial evidence test to determine whether there is “such relevant evidence as a reasonable mind might accept as adequate to support ... [the] conclusion” reached by the Board. State Election Bd. v. Billhimer, 314 Md. 46, 58 , 548 A.2d 819 (1988), cert. denied, 490 U.S. 1007 , 109 S.Ct. 1644 , 104 L.Ed.2d 159 (1989) (citations omitted); see also, Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119 (1978); St. Leonard Shores Joint Venture v. Calvert County, 307 Md. 441, 447 , 514 A.2d 1215 (1986); Hill v. Baltimore County, 86 Md.App. 642, 659 , 587 A.2d 1155 (1991). We may not substitute our judgment for the expertise of an administrative agency, such as the Personnel Board.

See Montgomery County v. Asbury Methodist Home, Inc., 313 Md. 614, 625-26 , 547 A.2d 190 (1988); Motor Vehicle Admin. v. Lindsay, 309 Md. 557, 564 , 525 A.2d 1051 (1987); Maryland Comm’n on Human Relations v. Baltimore, 86 Md.App. 167, 173 , 586 A.2d 37 (1991). Furthermore, we “must review the agency’s decision in the light most favorable to the agency, since ‘decisions of administrative agencies are prima facie correct’ ” and “carry with them the presumption of validity.” Bullock, 283 Md. at 513 , 390 A.2d 1119 (citations omitted). We are not constrained, however, to affirm the Personnel Board’s decision if it was premised on an erroneous conclusion of law. Baltimore, 86 Md.App. at 173, 586 A.2d 37 .

Before we address the specific contentions raised by Gaither in this appeal, we recognize that the route for reviewing handicap discrimination cases is somewhat circular. To clarify our approach to this case then, we note that a claimant, like Gaither, has the initial burden of presenting a prima facie case. To present a prima facie case, Gaither must establish that he was handicapped, that he was physically able to perform the duties of a water plant operator, and that his demotion was based solely on his handicap. See B & O Railroad Co. v. Bowen, 60 Md.App. 299, 309 , ⁵⁷⁷ 482 A.2d 921 (1984); Mass Transit Admin. v. Maryland Comm’n on Human Relations, 68 Md.App. 703, 711 , 515 A.2d 781 (1986), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987); Baltimore, 86 Md.App. at 176, 586 A.2d 37 ; see also Carty v. Carlin, 623 F.Supp. 1181, 1184 (D.Md.1985) (under Federal Rehabilitation Act, “not all persons with disabilities are entitled to protection”)- Being physically able to perform a job means that a claimant is otherwise qualified to perform the job — that is, “able to meet all the program’s requirements in spite of his disability.” Baltimore, 86 Md.App. at 174-75, 586 A.2d 37 , quoting School Board of Nassau County, Florida v. Arline, 480 U.S. 273 , 287 n. 17, 107 S.Ct. 1123 , 1130 n. 17, 94 L.Ed.2d 307 (1987).

Only after the claimant has presented his prima facie case does the burden shift “to the employer to establish that the handicap reasonably precludes the performance of the job.” Baltimore, 86 Md.App. at 176, 586 A.2d 37 . The employer may do this by showing that no accommodation is possible and by showing “to a reasonable probability that the complainant’s physical handicap would create a future hazard to the health and safety of either the applicant or the public at large.” Mass Transit, 68 Md.App. at 711-12 , 515 A.2d 781 ; see also Baltimore, 86 Md.App. at 176-178, 586 A.2d 37 ; B & O Railroad, 60 Md.App. at 309 , 482 A.2d 921 . The employer may also defend by proving “that a certain characteristic in a particular job is a bona fide occupational qualification” and that “such a characteristic is reasonably necessary to the performance of the job.” B & O Railroad, 60 Md.App. at 311 , 482 A.2d 921 ; see also Mass Transit, 68 Md.App. at 713 , 515 A.2d 781 (it is a valid defense to show that “the job qualification is a bona fide occupational qualification”); COMAR 14.03.02.05F(1) (employer may discriminate against handicapped persons “when mental and physical ability is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business”). ⁵⁷⁸ (Ü) Gaither’s first question for review focuses on his prima facie case, i.e., his handicap and ability to perforin the essential duties of a water plant operator. 2 Gaither and his witnesses asserted that he could do “anything he set his mind to.” For this reason, the County claims he has not established that he was handicapped. The County’s argument is meritless.

The Workers’ Compensation Commission found that Gaither’s injuries in 1978 and in 1985 left him with a 15% permanent disability, the County treated him as disabled, and the Personnel Board accepted this finding. There is no indication in the record, nor do either of the parties contend, that the County demoted Gaither for any reason other than his inability to perform his job due to his handicap. Having established that he is handicapped and that he was demoted solely on the basis of his handicap, Gaither still must prove the remaining prong of his prima facie case — that he was physically able to perform the duties of a water plant operator. A handicapped person need not be able to perform all the duties of the job at issue — rather, he must only be able to perform the essential duties of the job.

Baltimore, 86 Md.App. at 178, 586 A.2d 37 ; Carty, 623 ⁵⁷⁹ F.Supp. at 1186; Jasany v. U.S. Postal Service, 755 F.2d 1244, 1250 (6th Cir.1985). Gaither argues that the Board and the trial court erred in concluding that being able to lift 50 pound bags of lime is an essential duty of a water plant operator. He contends that being able to lift 50 pounds is not an essential duty of the job and thus whether he is capable of performing such activity is irrelevant in this case. Gaither correctly notes that the Anne Arundel County Code, in defining the job qualifications for a water treatment plant operator, does not mention the necessity of being able to lift 50 pound bags of lime.

See Anne Arundel County Code, art. 8, § 1-201(b). The Anne Arundel Code, however, does not mention any of the physical qualifications for a water plant operator. Rather, the Code only discusses the education and licensing requirements of an operator. See id.

In determining whether Gaither was able to perform the essential duties of a water plant operator, the Board consulted the county’s job description for the position and found “that the regular duties [performed by Gaither] do not fit those responsibilities defined for Senior Water Plant Operator in the performance planning and evaluation description form.” The performance planning and evaluation job description form does not expressly state that water plant operators must be capable of lifting 50 pound bags of lime; however, it lists the following critical elements of the job — elements that may entail lifting 50 pound bags of lime: Analyzes operating data and make necessary adjustments ... to the operation/process to ensure the highest quality water possible____ Performs manual tasks related to plant operation such as water testing, backwashing filters, replenishing chemicals, etc. ... Performs other work as required. It was appropriate to review this job description form. See e.g., Guinn v. Bolger, 598 F.Supp. 196, 202 (D.D.C.1984) (it ⁵⁸⁰ is appropriate to look to the job description to determine the essential duties of a job).

Moreover, and perhaps even more significant, in addition to reviewing this job description, the Board heard extensive testimony regarding the physical duties of a water plant operator. The Board found that The Senior Water Plant Operators who testified acknowledged that one of the primary requirements for the position was the ability to lift 50 pound bags of lime. The lime is lifted daily and carried into the various pumping stations. Nearly all of the witnesses conceded that they had not seen Appellant lifting any of the bags.

Several of the other witnesses who testified said that turning overhead valves was another physical requirement for the position of Senior Water Plant Operator. The valves are turned during the back wash procedure. Witnesses also testified that they had not seen the Appellant turning overhead valves. Shortly before the demotion, Appellant’s supervisor requested Appellant’s own physician, Dr. Chang, to assess Appellant’s ability to perform the duties of the Senior Water Plant Operator.

Appellant’s physician responded that Appellant would have difficulty completing the majority of the physical requirements of a Senior Water Plant Operator. Pursuant to Section 808 of the Anne Arundel County Charter, a permanent classified employee may be reduced in classification if “that ... employee is not physically capable of performing the work normal to the employee’s classification____” This Board finds that the County was permitted to demote the Appellant and that the highest position that he was qualified for because of his physical disabilities was maintenance worker. The evidence presented in the instant action clearly indicated at the time of the demotion he was unable to do the lifting of the lime bags, an essential component of the Senior Water Plant Operator position. , ⁵⁸¹ This Board can find no credence in Appellant’s contention that because he was doing essentially the same job before the demotion as after, he could not be demoted. The evidence clearly shows that the Appellant since his 1978 accident was not fully performing the duties of a Senior Water Plant Operator.

The County is permitted under the Charter to demote an employee who is not physically capable of performing the job. The record is replete with evidence supporting these findings. Virtually all of Gaither’s supervisors testified that Gaither was unable to perform essential physical duties of a water plant operator and that lifting of 50 pound bags of lime, turning overhead valves, and climbing ladders were such duties. With regard to lifting the 50 pound bags of lime, the only duty upon which Gaither focuses on his appeal, the supervisors testified that it “is required of” all water plant workers.

This is so, it was explained, because even though there are 26 water plant operators, only during 40% of weekday hours do the operators work in pairs; at all other times, including nights and weekends, there is only one water plant operator at a specific plant and no second operator is available to assist with lifting. For this reason, lifting the 50 pound bags, as one supervisor testified, “is the key thing that the water plant operators have to do in the daily operations. It can’t be done by anyone else.” Moreover, even the witnesses who testified on behalf of Gaither, including other water plant operators, acknowledged that lifting 50 pound bags was an essential duty of a water plant operator and Gaither was unable to perform that duty. Several of them specifically conceded that water treatment operators “have to be able to lift a 50 pound container ... climb ladders” and operate overhead valves and that after 1978 they had never seen Gaither lift 50 pound bags of lime or turn overhead valves.

Several witnesses, including Gaither himself, acknowledged that Gaither’s personal physician, Dr. Chang, had repeatedly recommended that Gaither be kept on light duty because of his inability to lift heavy objects and perform certain physical ⁵⁸² duties of the water plant operator position. Finally, it was uncontroverted that on May 9, 1989, the County sent Dr. Chang a list of physical specifications — including lifting 50 pound bags — for the water plant operator position and asked him to assess whether Gaither could perform those specifications. In response, Dr. Chang replied that Gaither could not do four of the seven tasks and would have difficulty with two others. Specifically, Dr. Chang opined inter alia that Gaither (1) could not lift 50 pound bags of lime but could only “lift less than 25 pound bags a few at a time ... he cannot carry 25 pound bags up and down stairs or carry for a distance;” (2) could only occasionally climb ladders and (3) could not operate overhead valves.

Accordingly, the Board did not err in relying on the County’s job description and the testimony at the hearing in determining that these were essential duties of the job, including lifting 50 pound bags of lime, that Gaither could not perform. See Hall v. U.S. Postal Service, 857 F.2d 1073, 1079 (6th Cir.1988) (a determination of the essential functions of a job depends on both the job description and the actual functioning and circumstances of the enterprise involved). (iii) Gaither’s next two questions for review focus on the employer’s duty to accommodate a handicapped employee. Gaither first argues that the County should not have been allowed to “abandon its ten year old job functions accommodation of Gaither’s handicap.” Gaither then contends that the burden of proving reasonable accommodation was erroneously placed on him instead of the County.

We consider these two issues in reverse order. After the Board determined that Gaither was unable to perform the essential duties of a water plant operator, the Board inquired into whether the County could have reasonably accommodated Gaither’s handicap so that he would have been able to perform the essential duties of the job. Employers in Maryland must make a reasonable ac ⁵⁸³ commodation for an employee’s handicap so that he may successfully perform his job. See Baltimore, 86 Md.App. at 178, 586 A.2d 37 ; COMAR 14.03.02.05B(1).

An accommodation is unreasonable if it imposes an undue hardship on the employer. COMAR 14.03.02.05B(1). Although the duty to accommodate rests on the employer, the burden of proving that an employer could not have reasonably accommodated a handicapped employee does not arise until the employee presents his prima facie case. Baltimore, 86 Md.App. at 178, 586 A.2d 37 .

See Jasany, 755 F.2d at 1249-51 . As discussed earlier, crucial to an employee’s prima facie case is the employee establishing that he is otherwise qualified to perform the essential functions of a job. Baltimore, 86 Md.App. at 176, 586 A.2d 37 . Establishing that one is “otherwise qualified” for a job necessarily entails a consideration of whether one would be qualified if his handicap were accommodated by the employer.

Id. at 174 , 586 A.2d 37 . Only after “a prima facie case has been presented, [does] the burden shift[ ] to the ... employer to demonstrate ... that reasonable accommodation is not possible.” Jasany, 755 F.2d at 1249-50 . It was precisely because the administrative agencies misunderstood this that we affirmed the trial court’s reversal of the administrative decision in Baltimore : The hearing examiner and the Appeal Board misconstrue B & O v. Bowen, supra, in deciding that the burden of establishing that Mrs. Thuman [the handicapped employee] could not be accommodated was on the appellee [the employer], for the reason that she [the employee] never established a prima facie case of discrimination which required her to show she could perform the essential duties of a police officer. 86 Md.App. at 178, 586 A.2d 37 . In Jasany, supra, an employee similarly failed to establish his prima facie case.

Jasany, 755 F.2d at 1250 . In considering the employee’s assertion that he could have performed the essential duties of the job with accommodation, the Sixth Circuit repeatedly looked to the employee to ⁵⁸⁴ present evidence to support this contention. The court noted that “Jasany [the employee] offered no evidence that [a curtailed schedule of his hours] would have alleviated his symptoms.” Id. at 1251 . Furthermore, the court recognized that Jasany’s contention that he could have been reassigned to another position was nothing more than an effort to confuse the employer’s duty to accommodate with the employee’s burden of proving that he could perform the essential duties of the job.

Id. Gaither concedes that he “is required to establish a prima facie case of handicap discrimination” before the employer has “a duty to show that the handicap could not be accommodated.” He argues that the burden of proving reasonable accommodation was improperly shifted to him. Although he is correct that the County bears the burden of proving that it could not reasonably accommodate him when he has presented a prima facie case, see Hall, 857 F.2d at 1080 , Gaither incorrectly maintains that he has “established” a prima facie case. If we were to require the County at this stage to prove that it could not have reasonably accommodated Gaither, we would, in essence, be requiring the County to prove that Gaither was not qualified to perform the job with reasonable accommodation.

This would violate the whole notion of requiring the employee to present a prima facie case. Thus, while a “court must ... consider whether any ‘reasonable accommodation’ by the employer would enable the handicapped person to perform those [essential] functions” of the job, Arline, 480 U.S. at 287, n. 17 , 107 S.Ct. at 1130 n. 17, the employer will not bear the burden of proof until the employee presents a prima facie case. In this case, Gaither testified that he could have done the job with a slight amount of accommodation. He put forth some suggestions for accommodation; for example, he argued that two water plant operators could carry the 50 pound bags of lime together or that 25 pound bags of lime could be ordered.

The Board found: ⁵⁸⁵ [t]here was no credible evidence