Gaither v. Anne Arundel County

• Decision Date: 01 September 1992
• Docket Number: No. 506,506
• Citation: 618 A.2d 244,94 Md.App. 569
• Parties: , 3 NDLR P 283 Alfred GAITHER v. ANNE ARUNDEL COUNTY, Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 569

94 Md.App. 569

618 A.2d 244, 3 NDLR P 283

Alfred GAITHER v. ANNE ARUNDEL COUNTY, Maryland.

No. 506, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Jan. 11, 1993.

Francis J. Collins (Joel A. Smith and Kahn, Smith & Collins, PA., on brief), Baltimore, for appellant.

John F. Breads, Jr., Asst. County Atty. (Judson P. Garrett, Jr., County Atty., on brief), Annapolis, for appellee.

Argued before ROSALYN B. BELL, DAVIS and MOTZ, JJ.

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 12 1/2% 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 2 1/2% permanent disability. After this second accident and until 1989, Gaither again returned to work in the same "light duty" status. ¹

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.

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?

(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, 309 482 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, 0 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").

(ii)

Gaither's first question for review focuses on his prima facie case, i.e., his handicap and ability to perform 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...