Ward v. Department of Natural Resources

• Decision Date: 17 April 2008
• Docket Number: No. 06CA2496.,06CA2496.
• Citation: 216 P.3d 84
• Parties: Patrick WARD, Complainant, Petitioner-Appellee, v. DEPARTMENT OF NATURAL RESOURCES, Respondent-Appellant, and State Personnel Board, Appellee.
• Court: Colorado Court of Appeals

216 P.3d 84

Patrick WARD, Complainant, Petitioner-Appellee, v. DEPARTMENT OF NATURAL RESOURCES, Respondent-Appellant, and State Personnel Board, Appellee.

No. 06CA2496.

Colorado Court of Appeals, Div. II.

April 17, 2008.

Certiorari Dismissed June 23, 2008.

Patricia Cookson, P.C., Patricia L. Cookson, Grand Junction, Colorado, for Petitioner-Appellee.

John W. Suthers, Attorney General, Christopher J. Puckett, Assistant Attorney General, Denver, Colorado, for Respondent-Appellant.

Roxane D. Baca, Assistant Attorney General, Denver, Colorado, for Appellee.

Opinion by Judge FURMAN.

Respondent, the Department of Natural Resources (DNR), seeks review of an order of the Colorado State Personnel Board (Board). The Board upheld the decision of an administrative law judge (ALJ) to reinstate the employment of Patrick Ward and to award him back pay, front pay, and attorney fees, after it determined the DNR violated Colorado's Anti-Discrimination Act (CADA), section 24-34-402, C.R.S.2007, and the Americans with Disabilities Act (ADA), 42 U.S.C. sections 12101-12117 (1994). We affirm.

I. Background

The ALJ's findings, and facts the parties stipulated to, reveal the following. From 1992 until 2004, Ward worked for the DNR as a Wildlife Technician III at the Rifle Falls Fish Hatchery. Each year the hatchery raises approximately five million trout for release into the lakes and rivers of Colorado. It has three large buildings that house the fish. The "hatchery building" houses the smallest fish; the "nurse basins" house fish at the next stage of development; and the "raceways" house the biggest fish, prior to their being shipped throughout the state.

A number of Ward's tasks were physically demanding. Ward was responsible for cleaning the fish basins, feeding the fish, and moving them between basins. To feed the fish, he loaded fifty-pound bags of food into a blower truck. He also was responsible for inspecting and operating vehicles and equipment on the hatchery grounds, including snow plows, dump trucks, forklifts, hydraulic cranes, and tractors.

In August 2001, Ward injured his back while working. He was placed on temporary work restrictions that his supervisor sometimes ignored. Ward periodically re-injured himself, due in part to his supervisor's requirement that he work beyond his restrictions.

Ward sent a letter to the DNR's Human Resources (HR) Department. The letter stated in part, "Because of an on-the-job injury, which resulted in a permanent, partial disability; I am requesting reassignment to a position that is less physically demanding." The letter was received by Melinda Elswick, the DNR's ADA coordinator and risk manager.

In response, Elswick sent Ward a letter, stating in pertinent part:

Thank you for your letter requesting job reassignment. We are willing to search for other positions on your behalf, as described in our published policy on Return to Work/Modified Duty (copy enclosed). That policy describes how we will compare the physical requirements of any vacant positions we have available, to the permanent restrictions placed on you by your doctor.

The letter also informed Ward that the DNR could not begin the job search until Ward had submitted a "Fitness-to-Return" form, documenting his permanent restrictions.

The Return to Work/Modified Duty Policy from the DNR Safety Handbook states in pertinent part:

If the employee can no longer perform the essential functions of the job, even with a reasonable accommodation, the employee may be protected by the Americans with Disabilities Act (ADA). All decisions should be discussed with and coordinated by the DNR Human Resources Office and the DNR ADA Coordinator.

The Human Resources Office will make a search for vacant positions within the [DNR], for which the employee is qualified, and which do not exceed the employee's permanent restrictions. These positions may be at the same or a lower grade level as the employee's previous job. (Promotions will not be offered as an accommodation — the employee may, however, compete for promotions.) The employee will be offered an opportunity to transfer/demote to any available positions found.

Ward arranged a functional capacity evaluation, which took several months to schedule. During those months, as found by the ALJ, "[Ward's supervisor] stated to Mr. Ward that if he couldn't handle the job, he would have to move on down the road and get out of there, or words to that effect."

After Ward completed the functional capacity evaluation, Ward's physician issued a "Fitness to Return Certification," listing a number of restrictions. His physician placed him at maximum medical improvement, with a twenty-two percent permanent partial impairment rating, for purposes of workers' compensation.

In September 2003, Ward submitted the certification to the DNR and reiterated his request for either reassignment to a vacant position or restructuring of his current position. The following month, Ward's physician completed a second list of restrictions, which Ward also submitted to the DNR.

Elswick and Ward's supervisor determined that Ward could not perform the essential functions of the Wildlife Technician III position, with or without reasonable accommodations, and decided not to restructure his job.

The DNR has approximately 1500 certified employees, but did not consider Ward as a candidate for any vacant positions at the DNR for which he may have been qualified during the five months leading up to his termination from employment. Ward had a degree in biology, and was qualified to perform office work and administrative duties.

Ward did not work after October 1, 2003, but received available leave, including leave under the Family Medical Leave Act and short-term and long-term disability benefits. His leave was exhausted on March 29, 2004.

Elswick wrote a pretermination letter, dated March 16, 2004, which was signed by the Chief of Fish Hatcheries, and stated in pertinent part:

Procedure P-5-10 [Board Rule 5-10, 4 Code Colo. Regs. 801 (2007) ] provides that when an employee has expended all paid leave and is unable to return to work and family/medical leave and/or short-term disability leave is inapplicable, the appointing authority may administratively separate the employee.

However, Rule 5-10 also states in a relevant part that was not quoted:

No employee may be administratively separated if [family medical leave] or short-term disability leave ... apply or if the employee is a qualified individual with a disability who can reasonably be accommodated without undue hardship.

Rule 5-10 and the DNR's Modified Duty/Return to Work Policy required Elswick to inform Ward of his rights under the ADA. However, she did not do so, and no one at the DNR determined whether he was disabled or was entitled to ADA protections.

Ward wrote another letter in response to the pretermination letter, stating he had made three requests for accommodations, including relocation, and there had "not been even the slightest effort to accommodate my physical limitations or reassign me to a job that I can handle." The DNR did not respond to this letter.

The DNR conducted a job search one week before officially terminating Ward. In conducting the search, the DNR (1) failed to list Ward's computer and administrative experience and skills under "Qualifications"; (2) found ten vacant positions; (3) did not provide any information to Ward about these ten vacant positions; and (4) unilaterally determined Ward was not qualified for any of the vacant positions, given his physical restrictions.

On March 29, 2004, the DNR terminated Ward's employment, stating in pertinent part:

You have requested work accommodation for your disability. In accordance with our Modified Duty/Return to Work Policy, we first determined that your present position cannot be modified to meet your restrictions, without removing essential functions. We next made a search for vacant positions at or below your current level, with physical requirements within your restrictions, for which you are qualified. We used the most recent restrictions provided by your doctor in September 2003, and based the assessment of your qualifications on your most recent application, from February 2004, and were unable to identify any positions for which you are qualified, which fall within your physical restrictions.

On April 2, 2004, Ward timely filed an appeal with the Board, claiming disability discrimination. After a four-day evidentiary hearing, the ALJ issued an initial detailed and well-reasoned decision in Ward's favor. The ALJ found that (1) Ward was disabled because he was permanently restricted in the manner and duration of performing manual tasks, including lifting, pushing, and reaching above his shoulders; (2) he could not perform the essential functions of a Wildlife Technician III; and (3) according to ADA standards, the DNR did not reasonably accommodate Ward's disability by engaging in an interactive process with him, including conducting a timely vacant job search. The ALJ concluded that Ward was terminated on the basis of disability, in violation of the CADA and the ADA.

The Board reviewed this initial decision and remanded the case to the ALJ "solely for legal analysis regarding the fifth prong of the test for a prima facie case of discrimination based on a disability, as enunciated in Community Hospital v. Fail, 969 P.2d 667 (Colo. 1998)."

In Fail, the supreme court adopted a test to be applied when an employee seeks to establish a violation of the ADA:

[W]e adopt the following test for when an employee seeks to establish that her employer violated the ADA by failing to offer reasonable accommodation. As part of her prima facie case, the employee must show: (1) that she is a disabled person within the meaning of the ADA; (2) that she was otherwise qualified for her current position; (3) that she was terminated from that position because of her disability; (4) th...