By: Jim Cline & Harrison Owens
In Bailey v. City of Englewood, a Colorado District Court dismissed the claims of a former firefighter/paramedic that he had been wrongfully discharged and that the City had failed to accommodate his disability. In his complaint, the firefighter/paramedic claimed that his rights under the Americans with Disabilities Act (ADA) had been violated because he was fired following back surgery. The City argued that his depression, which occurred after his surgery, caused him to be a direct threat to those he served and unable to perform his essential job functions. The District Court agreed with the City, and dismissed the firefighter/paramedic’s case.
Douglas Bailey was employed as a firefighter and paramedic by the Englewood Fire Department from 2006 to 2011. His duties included responding to fire and emergency calls, performing advanced life support functions for sick and injured people, and maintaining the fire station and its supply of narcotics and equipment.
In the spring of 2009, Bailey injured his back while working and underwent spinal surgery in July. Following his surgery, he was assigned to light duty work and was assigned to the Fire Marshal’s office. In September 2009, Bailey began to experience depression while rehabilitating from surgery, and was diagnosed with situational depression and prescribed medication.
Bailey requested that his daily work routine be restructured to accommodate his disability. This led to Bailey being assigned to a different shift. Bailey’s doctor cleared him to return to regular duty shortly thereafter.
Bailey violated several Department rules that led to disciplinary action against him. On July 11, 2010, Bailey was part of a group dispatched to a fire. While combating the fire, Bailey misplaced his radio and worked without one in violation of Department policy. He received a corrective action letter related to this incident, which also noted that he acted discourteously towards the other firefighters in his shift.
In 2010, Bailey complained to his Lieutenant about “burnout.” His Lieutenant observed that Bailey was unable to do basic tasks required of firefighters and expressed his concerns to the Chief. It was decided that Bailey should be evaluated to assess his skills.
Without being given notice that he was being evaluated, Bailey was asked to take the evaluation in March 2011. The Lieutenant’s written report noted Bailey’s sloppy performance, poor grasp of basic firefighter knowledge, and concerning fitness level. Bailey acknowledged his poor performance, and discussed his depression with his Lieutenant.
Bailey was relieved from regular duty after this evaluation, and assigned to remedial training for one month. He eventually returned to regular duty in August 2011, and received additional training for 30 days. He continued to have performance issues, including incorrectly inventorying certain narcotics and incorrectly responding to a gas leak.
At a meeting with his supervisors, he acknowledged that his actions had caused a dangerous situation, and that there was no excuse for his lapses in judgment. He was subsequently given a termination letter, which cited his repeated mistakes as the reason for his termination.
In response to his termination, Bailey filed a lawsuit in District Court against the City. Bailey claimed that his rights under the ADA had been violated by the City for terminating him due to his post-surgery depression, and for failing to accommodate his disability.
To establish a claim under the ADA, Bailey would have to show that he was disabled, was qualified with or without accommodation to perform the essential functions of his job, and that his termination was based on his disability. Bailey and the City agreed that Bailey was disabled under the ADA. The City argued that Bailey was unable to perform the essential functions of his job and that he was not terminated due to his disability.
The District Court agreed with the City. First, it found that Bailey posed a direct threat to himself, his co-workers and the general public. In determining whether an individual poses a direct threat, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Because the safety of others was concerned, Bailey bore the burden to show that he could perform the essential functions of his job without posing a direct threat. The District Court found that Bailey did in fact represent a danger to the public due to his poor performance. The Court found that Bailey provided no evidence that reasonable accommodations would have reduced the threat he posed.
The District Court also found that Bailey was unable to perform the essential functions of his job, even with reasonable accommodations. The Court found that Bailey failed to provide any objective medical evidence allowing the City to determine what reasonable accommodations would assist him to perform his job. Bailey’s failure to provide medical information necessary to the interactive process precluded him from claiming that the employer violated the ADA by failing to provide reasonable accommodation.
The important points raised in this case are: (1) where the employee holds a position that could pose a direct threat to himself, his co-workers or the public, it is the employee’s burden to show that he can perform the essential functions of his job without posing a direct threat; and (2) where the employee requests an accommodation, and the employer requests medical records supporting his disability and request for accommodations, it is the employee’s responsibility to provide medical evidence, i.e., records, to support his request for accommodation. An employer will not be found to have violated the ADA where the employee fails to substantiate his disability and request for accommodation with medical evidence.
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