Huber v. Howard County, Md., Civ. No. K-93-606.

• Decision Date: 15 April 1994
• Docket Number: Civ. No. K-93-606.
• Citation: 849 F. Supp. 407
• Parties: John HUBER v. HOWARD COUNTY, MARYLAND.
• Court: U.S. District Court — District of Maryland

849 F. Supp. 407

John HUBER v. HOWARD COUNTY, MARYLAND.

Civ. No. K-93-606.

United States District Court, D. Maryland.

April 15, 1994.

Francis J. Collins, Baltimore, MD, for plaintiff.

Barbara M. Cook, County Sol. for Howard County, Richard E. Basehoar and Rebecca A. Laws, Sr. Asst. Sols. for Howard County, Ellicott City, MD, for defendant.

FRANK A. KAUFMAN, Senior District Judge.

John Huber brings this suit under the Rehabilitation Act, 29 U.S.C. § 794, claiming that Howard County, Maryland, unlawfully discriminated against him when the County refused to hire Huber as a full-time firefighter because he suffers from asthma. For the reasons stated herein, this Court concludes that there are no material and relevant disputes of fact, and that, as a matter of law, Huber is not an otherwise qualified individual within the meaning of the Act, nor did the County unreasonably fail to accommodate Huber's disability. Accordingly, this Court grants the County's pending motion for summary judgment.

FACTS

In Howard County, Maryland, firefighting services are provided by both volunteer fire corporations and career employees of the County's Department of Fire and Rescue. Volunteer firefighters are not required to meet all the requirements established for career firefighters or to participate in County sponsored training or testing. Rather, they may choose to limit the functions which they perform during a fire emergency.

Huber applied and was accepted for membership in the Ellicott City Volunteer Fireman's Association, Inc. in March of 1986, and in the West Friendship Volunteer Fireman's Association, Inc. in February 1987. Both of those non-profit, non-stock corporations are located in Howard County. As a volunteer firefighter, Huber successfully completed several training courses and also became certified as a cardiac rescue technician.

On March 30, 1989, Huber applied for the position of firefighter recruit with the County's Department of Fire and Rescue Services. Firefighter recruits attend an eighteen week fire academy conducted by that Department, after which they are called upon to complete a one year probationary period before being admitted to a career firefighter position. On November 11, 1989, as part of the individualized medical examination required of all firefighter recruit candidates, Mr. Huber reported to an examining physician hired by the County that he had a history of "childhood" asthma and that he used an inhaler; nonetheless, the County doctor recommended Huber for hire. Huber began employment as a firefighter recruit on February 12, 1990.

As a firefighter recruit, Huber was required to participate in a training academy which had a physical fitness training program as one of its component parts. Male firefighter recruits were expected to run 1.5 miles in under 13 minutes. While a recruit's failure to meet the entry level standards in any one exercise did not necessarily result in the recruit's disqualification, all recruits were required to pass a final agility test at the conclusion of the academy in order successfully to complete the recruit training program. Although firefighters are instructed not to run at the scene of a fire, the running exercises are meant to ensure that firefighters are physically fit to assume the demanding tasks otherwise required of them, such as pulling hoselines, throwing and raising ground ladders, opening holes in roofs and walls using an axe, gaining entry through a locked door, operating heavy duty extrication tools, and participating in salvage operations.

During physical training classes at the academy, Huber had difficulty performing several of the running exercises. On February 14, 1990, Huber had to use an inhaler/bronchodilator to assist his breathing during an exercise. Subsequently, he was referred for an additional medical examination, and on February 16, 1990, an internist issued a report stating that Huber appeared fit to undertake the physical stress of a firefighter's job, but suggested further evaluation in the light of Huber's performance problems during running exercises. On February 19, 1990, during physical training exercises, Huber failed to finish the 1.5 mile run in 13:00 minutes, taking instead 13:02 minutes. On February 22, 1990, Huber again experienced difficulty in the running exercise, had to use his inhaler, and told his instructor that he "didn't want to bring on anything" and that "I can't run the pace in cold weather so I slow down and continue running."

On that latter date, the County's Office of Personnel required Huber to report to his treating physician for an examination and asked that the physician provide an opinion as to whether Huber could perform firefighting work in an environment in which Huber was exposed to a variety of adverse conditions. On February 27, 1990, the physician responded to the County's questionnaire, stating that Huber could not perform the duties of a firefighter without medication to control his asthmatic condition. That physician also wrote that Huber "most likely" could perform firefighter duties with medication, but that "if there is any further question regarding his capability — perhaps an evaluation by a pulmonologist or allergist would be appropriate."

On February 28, 1990, Huber was advised that he could not carry his inhaler during work hours. That day, Huber took 14:14 minutes to finish the 1.5 mile run, and the next day he had to stop running after one mile, telling his instructor that his legs hurt but that he had no trouble breathing. On March 5, 1990, Huber stopped running, stating that he needed to clear his lungs, and on March 6, 1990, he stopped running during an exercise and ended up finishing eight minutes slower than the average class time. During the physical training at the academy, other recruits also from time to time had difficulty completing the 1.5 mile run in the 13:00 time.

On March 1, 1990, the County referred Huber to the Director of Pulmonary Diseases at Maryland General Hospital, Dr. Michael G. Hayes, who examined Huber on March 2, 1990. Dr. Hayes subsequently wrote to the County recommending that Huber not be hired as a firefighter based upon the risk Huber would pose to himself and others with whom he would work. Dr. Hayes explained in an affidavit that given the demands on firefighters at the scene of a fire — rapidly fluctuating temperature conditions, work at or near maximal heart rates, and exposure to toxic substances — there is no medical plan which, if followed by Huber, would enable him to serve without a risk of future harm to himself or others.

On March 12, 1990, the County wrote to Huber, telling him that his employment would be terminated pursuant to Howard County Code Section 110(d)(4)(b) which provides for dismissal of an employee who has some permanent or chronic physical or mental ailment or defect which incapacitates him from the proper performance of his duties. Huber was afforded a hearing prior to dismissal before the Director of the Department of Fire and Rescue Services, following which the Director filed charges of dismissal with the County's Personnel Officer requesting that Huber be discharged from employment. On March 19, 1990, the County's Personnel Officer advised Huber of his dismissal and of his rights of appeal. Huber did not file an appeal, and his termination became effective on March 23, 1990. Huber has continued his membership with the West Friendship Volunteer Fireman's Association, Inc. and currently works as a cardiac rescue technician/driver. Since his dismissal, Huber has been seen at least nine times by doctors for breathing problems and has been hospitalized for such problems on at least two of those occasions.

In this case, Huber has brought suit in federal district court against the County pursuant to section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, claiming that the County unlawfully discriminated against him when it refused to accommodate his disability.¹ The County responds that plaintiff does not have a disability as defined under the Act, that it did not refuse to accommodate Huber, that Huber's condition could not be reasonably accommodated with medication, and that it did not act willfully and wantonly against Huber or discriminate against him. Defendant has moved for full summary judgment, and plaintiff has moved for partial summary judgment with respect to liability.

As set forth in Fed.R.Civ.P. 56(c), summary judgment may be granted when "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "`A mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir.1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 640 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967), cert. denied, 390 U.S. 959, 88 S.Ct. 1039, 19 L.Ed.2d 1153 (1968)). In the absence of such a minimal showing, a party moving for summary judgment should not be required to undergo the expense of preparing for and participating in a trial of the issue challenged. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The burden is on the party moving for summary judgment to show that no genuine issue of fact exists and that the movant is entitled to judgment as a matter of law. Barwick v. Celotex, 736 F.2d at 958. The facts and the inferences to be drawn from the facts must be viewed "in the light most favorable" to the nonmoving party. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985). Nevertheless, the Fourth Circuit has stated that, with regard to motions for summary judgment, trial judges have "an affirmative obligation ... to prevent `factually unsupported claims and defenses' from proceeding...