Dutton v. Johnson County Bd. of County Com'rs

• Decision Date: 20 July 1994
• Docket Number: Civ. A. No. 93-2184-GTV.
• Citation: 859 F. Supp. 498
• Parties: William R. DUTTON, Plaintiff, v. JOHNSON COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant.
• Court: U.S. District Court — District of Kansas

859 F. Supp. 498

William R. DUTTON, Plaintiff, v. JOHNSON COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant.

Civ. A. No. 93-2184-GTV.

United States District Court, D. Kansas.

July 20, 1994.

COPYRIGHT MATERIAL OMITTED

Alan P. Blinzler, Overland Park, KS, for plaintiff.

LeeAnne Hays Gillaspie, Mary Martin Buhl, Johnson County Legal Dept., Olathe, KS, for defendant.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

This is a disability discrimination action brought under the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 791 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. Plaintiff, a former employee of the defendant county, alleges that the county violated these statutes by terminating his employment and failing to offer reasonable accommodation for his disabling condition. The case comes before the court on defendant's motion for summary judgment (Doc. 41). For the reasons outlined below, the motion is denied.¹

I. Facts

The following factual summary is based on the parties' statement of uncontroverted facts submitted in connection with the summary judgment motion. Those material facts which are controverted and supported by deposition testimony or other evidence are stated in the light most favorable to the plaintiff, the non-moving party.

Plaintiff began working for Johnson County Public Works in October, 1979, and his employment was terminated on August 18, 1992. During the time he was employed by the county, plaintiff worked as a laborer, truck driver, and equipment operator. He was an equipment operator for approximately five years immediately preceding his termination. His job duties as an equipment operator included operating heavy equipment such as oil distributors, grade-alls (used for digging ditches), rubber tire rollers, steel wheel rollers, road graders, street sweepers, track loaders, bulldozers, and dump trucks, in the course of performing road maintenance.

Plaintiff claims that he is disabled because he suffers from migraine headaches. He began experiencing headaches in 1971 while still in the military, and his headaches have not changed significantly in quantity or quality since then. The headaches are a physiological disorder affecting plaintiff's neurological and cardiovascular systems. In 1974, plaintiff obtained a 10% disability rating from the Veterans Administration ("VA") because of his headaches. The VA reevaluated and changed that rating twice. In 1979, the rating was increased to 30%, but in 1988 it was reduced back to 10%. Plaintiff is unaware of any connection between engaging in work activities and the onset of the headaches. He states that the triggering events are unknown.

Plaintiff was terminated from employment due to absenteeism. His termination was based solely on his unexcused absences and not as a result of any deficiency in the quality of his work. When at work, he performed his job in a satisfactory manner.

During the period 1979 through 1989 there was no significant change in plaintiff's sick leave pattern. Plaintiff used an average of approximately 102 hours per year in sick leave during the period 1983 through 1989. In 1990 he used 101 hours, in 1991 he used 96 hours, and in 1992 he used 64 hours up until his termination in August. Plaintiff also used an average of approximately 116 hours per year vacation time during the period 1983 through 1991. In 1992, plaintiff used 88 vacation hours prior to his termination.

In November, 1989, the Director of Public Works, James Pilley, issued a new policy that required employees to schedule vacation time in advance, and to provide a doctor's statement if sick leave usage exceeded certain amounts. The policy provided that vacation or personal holidays for which the employee gave inadequate notice would be treated as unscheduled leave, and that such unscheduled leave could affect an employee's appraisal rating. In defining the advance notice required, the policy stated that employees requesting more than four vacation days must give at least seven days notice. For one to four vacation days, the employee's supervisor was to determine if the leave request is scheduled or unscheduled based on whether the notice was adequate to accommodate the employee's absence. In implementing this policy, supervisors in the department have apparently required that employees give at least 3 days notice, except for emergencies, of any use of vacation time.

Some changes were made after Bob Henry, in November, 1989, was made superintendent of road maintenance, the section within the public works department which employed plaintiff. One change involved the method of assigning work. Road crew members previously did not receive their work assignments until some time after they reported for work, after the foremen knew what personnel would be on duty that day. Mr. Henry changed the procedure so that the employees would receive their assignments as soon as they reported for work at 8:00 a.m. Employees requesting sick or other emergency leave were required to call in between 7:45 and 8:00 a.m.

Beginning in 1989, employees were required to execute leave request forms for all time off work. These forms asked for the reason the employee was taking the leave. Plaintiff's leave request forms for 1989 through August, 1992 show that he was absent due to illness a total of 539.75 hours, or about 67 work days. Out of this total, plaintiff was absent a total of 235.75 hours, or about 29 work days, due to headaches. The absences due to illness occurred on 76 separate days, 55% of which were Mondays or Fridays. Of the days that plaintiff was absent due to headaches, 63% were on Mondays or Fridays.

Plaintiff was first reprimanded for his absenteeism in 1989, in conjunction with his annual performance appraisal. Phil Yauger, Bob Henry's predecessor, delayed plaintiff's raise that year due to his absenteeism. Plaintiff provided Mr. Yauger with a note from plaintiff's treating physician who indicated that he had treated plaintiff since 1983 for severe headaches, that the headaches had been treated with codeine, and that skull and spine x-rays were negative. In July, 1990, plaintiff's annual appraisal indicated that he had used 90.5 hours sick leave and 40 unscheduled hours in the previous year. The supervisor again advised plaintiff that he should reduce the number of sick leave hours used.

Plaintiff had been allowed to use vacation time to cover absences due to illness when he had exhausted his sick leave. Beginning in approximately May, 1991, however, plaintiff was put on leave without pay (LWOP) for such absences. Plaintiff filed a grievance on May 20, 1991, in which he sought "recognition" of his disability and pay for the LWOP hours he was charged. After holding a grievance hearing, Mr. Pilley issued a decision directing that plaintiff be paid for the hours charged to LWOP, but upholding the department's policy and requiring that plaintiff's future vacation time requests be made in advance. Mr. Pilley also advised plaintiff that the department had inadequate documentation of plaintiff's alleged disability. In response, plaintiff provided additional doctor notes in approximately August, 1991.

Plaintiff's next annual performance appraisal, in July, 1991, again addressed absenteeism. Plaintiff was given a "provisional" rating for the job factor titled "Attendance and Punctuality." The appraisal contains a notation that plaintiff had used 81 hours sick leave and 75 hours unscheduled leave. Plaintiff was given a performance improvement plan which identified the problem as excessive sick leave and unscheduled leave, and which encouraged plaintiff to reduce his leave usage. The plan was to run for three months. Plaintiff was denied his salary increase.

After the expiration of the 90-day period, on October 21, 1991, plaintiff was again given a performance appraisal. This appraisal noted no improvement in attendance and stated that in the three-month period plaintiff had used 28 hours of sick leave, 13 hours unscheduled leave, and 9 hours LWOP. The performance improvement plan was continued for another 90 days.

No improvement occurred during this 90-day period, and on February 4, 1992, plaintiff was given a "first warning" which required a doctor's excuse for all sick leave used and prohibited the use of any LWOP or unscheduled time. Plaintiff filed a grievance, a grievance hearing was held, and Mr. Pilley responded on February 24, 1992, by declining to modify the first warning. Plaintiff appealed this decision to the county administrator, E.H. Denton. Mr. Denton held a grievance hearing and asked whether plaintiff would be interested in a part-time schedule to accommodate his frequent absences. Plaintiff declined this offer and restated his position that he should be able to use his vacation time to cover absences due to illness when his sick leave was exhausted.

Mr. Denton denied plaintiff's proposed relief in a decision dated March 23, 1992, in which he found that the department had a reasonable expectation to minimize unscheduled absences in order to increase efficiency. He found that plaintiff's unscheduled leave usage was excessive, and noted that the first warning indicated other problems, including tardiness and failure to call in absences timely.

During the next 90-day period plaintiff used 28 hours sick leave and 52 hours LWOP, which included 40.25 unscheduled hours. As a result, plaintiff was issued a "second warning" on May 4, 1992. The second warning contained the same recommended remedy: to improve within the next 90 days.

The next annual performance appraisal was given to plaintiff on August 3, 1992, and he again received a "provisional" rating in the attendance and punctuality job factor, and was again denied a salary increase. On August 11, 1992, Mr. Pilley met with plaintiff in a pre-disciplinary conference during which Mr. Pilley offered plaintiff the option of working a ...