By Linda L. Harfst
Cullen Weston Pines & Bach LLP
In June 2001, Steve Urso, then WPPA Executive Assistant, telephoned attorney Linda Harfst of Cullen Weston Pines & Bach LLP for assistance because of a rapidly-developing situation involving Waukesha County corrections officers. It appeared that some corrections officers assigned to the jail and the Huber facility were being removed from work based upon the County’s assessment that they could not wear a self-contained breathing apparatus (“SCBA”) on the job. The information available to the WPPA at that time indicated that at least one of the officers had been working regularly and had been using the SCBAs in training and fire drills without problems.
WPPA’s call to Attorney Harfst started a chain of events which culminated more than three years later in an order by the Hon. J.P. Stadtmueller, U.S. District Judge, on October 15, 2004. In his order, Judge Stadtmueller found that Waukesha County had discriminated against one of WPPA’s members, corrections officer Mark L. Dearth, in violation of the Americans with Disabilities Act, 42 U.S.C. 12101, et seq.; that it interfered with Dearth’s rights under the federal Family or Medical Leave Act, 29 U.S.C. sec. 2601, et. seq.; and that three Waukesha County managers – Labor Relations Manager James Richter; Risk Manager Laura Stauffer; and Jail Administrator Michael Giese acting in their individual capacities – had violated Dearth’s constitutional rights in his job.
The outcome of this case demonstrates how important it is that union members’ labor representatives be kept aware of issues affecting members’ employment. Often a particular action by an employer may implicate both the labor contract and statutory law. Union representatives receive training in recognizing such situations and in providing the member assistance with locating help. In this case, WPPA’s prompt intervention not only prevented the loss of the member’s employment, but also led to a remedy for the loss he suffered.
The County Removes Dearth from Work
Upon receiving Urso’s call, Attorney Harfst made contact with Mark Dearth, one of the officers whose ability to perform the job was being questioned. She learned that he and other officers had filled out a medical questionnaire in the spring of 2000 at the direction of the County. Both before and after filling out this questionnaire, Dearth worked regularly and participated in training and drills using an SCBA. A year passed in which Dearth heard no more about the questionnaire he had filled out, nor did he ever have to don an SCBA in an actual emergency.
But in April 2001, Dearth’s supervisor at the jail, Captain Margaret Schnabl, suddenly informed him that he would have to report for a physical examination at Concentra Medical Center because of his answers to some of the questions on the form he had completed the previous year. Dearth complied, and was examined by a physician at Concentra, Thomas Wolfe, M.D., on April 12, 2001. The examination required that he take a spirometry test to measure pulmonary function. Dr. Wolfe did not ask Dearth to exercise, nor did he require any stress test of Dearth. He did not examine Dearth while Dearth wore an SCBA. At the end of the test, Dr. Wolfe told Dearth that he had failed the pulmonary function test and that he would have to repeat it. Dr. Wolfe completed a Medical Determination for Respirator Use indicating that Dearth was restricted on respirator use.
Dearth, who continued to work, reported for a repeat of the spirometry test on May 8, 2001. Following this test, Dr. Wolfe told Dearth he had failed the breathing test again, and that he needed to see his treating physician. Dearth did so, and his own doctor confirmed that Dearth’s pulmonary function test was abnormal. He referred Dearth to a pulmonologist for further review, but also returned Dearth to work without restriction in the meantime.
Dearth requested union representation at meetings with the County about his medical situation, because he correctly feared that his job as a corrections officer might be in jeopardy. At a June 5, 2001 meeting (even before the pulmonologist’s final diagnosis), County Labor Relations Manager James Richter told Dearth that he might not be able to continue working as a corrections officer. Dearth and his union representatives asked if there were any other jobs that he could perform for the County, but Richter indicated that the County did not put people in other positions. Dearth, however, was aware that the County had accommodated other officers by putting them in other positions. He left the meeting feeling that he had been treated in a very cold fashion and not knowing what would happen to his job.
On June 7, 2001, Dearth was diagnosed with moderate Chronic Obstructive Pulmonary Disease, sometimes referred to as “COPD.” The pulmonologist felt that the COPD would be manageable with diet, exercise, and medication. This advice calmed Dearth’s concerns about his health. Dearth kept his supervisors at the County fully informed as to his medical condition. He began an exercise program even before the final diagnosis, and fully complied with his doctors’ diet and other recommendations throughout the legal proceedings which followed.
On June 13, 2001, Dr. Wolfe completed a Medical Determination for Respirator Use form indicating that Dearth was not allowed to use an SCBA. Significantly, Dr. Wolfe never attempted to test Dearth on a treadmill or while wearing an SCBA. On June 18, Captain Schnabl informed Dearth, just five minutes before the end of his shift, that she had received “the hard copy” from Concentra, and Dearth was removed from duty effective immediately. He should not report for duty the next day. Richter, Stauffer, and Giese jointly decided that Dearth should be removed from duty.1
Giese later testified under oath that he believed Dearth had a life-threatening illness and that “they were looking at a potential replacement of [Dearth’s] lungs.”2 However, Giese’s beliefs were based upon rumors in the work place,3 as no one had ever told Dearth that he needed a lung transplant, nor did he ever claim that he needed a transplant.
On June 19, 2001, Dearth, accompanied by union representatives, met with County Human Resource representatives to request accommodation for his disability. The County declined to provide an accommodation, even in the form of a transfer to another position. They also told Dearth that he could use up his accrued leaves and he could then go on unpaid leave under the federal Family or Medical Leave Act (“FMLA”). They gave him an FMLA form, but did not give Dearth any indication of when, or if, he could return to work, nor did they explain to Dearth his FMLA rights, including his right to reinstatement.
The County Delays Dearth’s Return to Work
Dearth remained off work through the summer of 2001. On July 16, when his benefit time was used, he began unpaid FMLA leave. By July 18, Dearth, who was active in a diet and exercise program, told his pulmonologist that he felt ready to return to work. He saw his treating physician on July 23, and provided the doctor with the only job description for his position that he had ever seen. His doctor provided Dearth with a letter saying that Dearth was fully capable of doing the 14 characteristics and duties of a corrections officer, inviting questions, if there were any, regarding Dearth’s pulmonary function. Although Richter received this letter through Dearth’s legal counsel on or about August 6, 2001, no one at the County responded to it until October 1, 2001. Specifically, no one at the County took any prompt action to return Dearth to work, nor even to inquire further of Dearth’s doctor.
When Dearth next visited his pulmonologist on September 4, 2004, he was still on unpaid leave. The County would not tell him what he needed to do to return to work. The pulmonologist agreed that Dearth should be working. In consultation with the pulmonologist, Dearth’s treating physician wrote another letter, which Dearth’s lawyer provided to the County. In this letter, Dearth’s physician informed the County that he should not be disqualified from work simply on the basis of pulmonary test function results. There were no medical contraindications to his return. The pulmonologist also wrote a follow-up letter, which Dearth’s lawyer provided to the County on September 25. This letter suggested that Dearth should be tested while wearing the SCBA. The doctor explained that Dearth could not be disqualified from his duties as a corrections officer on the basis of a single determination of lung function.
Finally, on October 1, Richter responded. Significantly, he did not return Dearth to work. Rather, he merely inquired as to whether Dearth’s condition had changed, and requested clarification from the doctor. It seemed clear that the County would resist returning Dearth to work, since Dearth had tried to return three times between August and the end of September 2001, but the County had not allowed him to do so. Dearth filed a charge with the U.S. Equal Employment Opportunities Commission alleging violation of the Americans with Disabilities Act on October 3, 2001.
At the end of the day on October 5, 2001, Dearth’s unpaid federal FMLA leave expired. Still he was not returned to work; instead, beginning on October 8, the County extended his unpaid leave. On October 10, 2001, Dearth’s primary care physician responded to Richter’s questions by explaining how Dearth’s condition had improved. Dearth’s doctor then advised Richter that no published standards existed to say that it was safe to use self-contained breathing apparatus for limited periods of time. He suggested testing Dearth while wearing the SCBA.
The County agreed to a stress test designed and administered by Dearth’s physician, with an SCBA borrowed from the County. The test consisted of a treadmill test in which Dearth was hooked to electrodes. The persons administering the test could incline and decline the treadmill, speed it up, or slow it down, while monitoring Dearth’s blood pressure. Dearth took the test without the SCBA on October 25, 2001, and with the SCBA on October 26. He achieved scores that his treating physician termed “very adequate.”4 On October 31, 2001, Dearth’s physician informed the County in writing that, “I do not see that there would be any contraindication to his participation as a corrections officer.”
Nevertheless, not until November 8, 2001 was Dearth actually returned to his work as a corrections officer. From July 16 until November 8, 2001 he had not received a pay check, and he was responsible for paying his portion of the premiums on his insurance policies. Fortunately, his union co-workers contributed funds to enable him to do so.
Waukesha County Retests Dearth
After his return to work, Dearth worked continuously as a corrections officer until April 2002, when he was again sent for a re-check at Concentra. Dearth followed orders and completed another medical questionnaire, indicating on the form that he had COPD. On April 22, he appeared at Concentra for the required examination, where he was given another pulmonary function test. This test showed scores nearly identical to those that had caused the County to remove him from the job in 2001. This time, however, the examining physician, Dr. Jurisic, completed a form indicating that Dearth was restricted to using a respirator only in an emergency. She returned him to work, where he continued his employment as a corrections officer. At Dearth’s deposition on December 17, 2003, Dearth testified that there was nothing in his work that he could not do because of the COPD.5
Dearth Files Suit
In June 2002, the U.S. Equal Employment Opportunities Commission issued its determination, finding that there was reasonable cause to believe that the County had violated the Americans with Disabilities Act in its handling of Dearth’s employment. On September 10, 2002, Dearth received the Notice of Right to Sue from the United States Department of Justice, Civil Rights Division, which allowed him to bring suit against the County in the United States District Court for the Eastern District of Wisconsin. On December 5, 2002, Dearth’s attorneys filed suit on his behalf. They later amended the complaint to include claims against Richter, Giese, and Stauffer in their individual capacities.
As discovery proceeded, Dearth’s attorneys consulted an independent medical expert, Dr. Levy, to testify regarding Dearth’s pulmonary fitness during the summer and fall of 2001. Dr. Levy explained that, given Dearth’s levels of fitness in October 2001, he could have been medically cleared to wear an SCBA around July 2001. The County provided no countervailing medical opinions. Dr. Levy’s information allowed Dearth’s attorneys, Linda Harfst and Kira Loehr, to amend his complaint with the permission of the court to allege a violation of the FMLA, as well as of the ADA. If Dearth had been returned to work when his attorney and physicians first requested that he be returned, the only medical evidence in the record, that provided by Dr. Levy, proved that he had been fit enough to return the first time his doctor released him.
Other Legal Issues
The availability of discovery and legal counsel’s earlier investigation of the law revealed that as part of its risk protection and worker’s compensation programs, Waukesha County had implemented its first written Respiratory Protection Program. While implementing new procedures for use of self contained breathing apparatus (“SCBAs”), and in an apparent attempt to comply with OSHA regulations developed in the mid-1990s, the County made the decisions that resulted in Dearth’s removal from work. Significantly, OSHA contains no standards indicating what level of pulmonary function makes it safe for an individual to wear an SCBA. Also, the County did not develop standards and provide them to its medical provider, Concentra. Later, Stauffer confirmed under oath that she knew of no standards available to a medical provider to determine what level of pulmonary function would allow an individual to safely wear a respirator.6 These admissions strengthened Dearth’s constitutional claims because it appeared that Dearth not only did not receive any sort of due process before he was removed from his job, but also that he could have proven that the County’s decision to remove him had no basis in fact or law.
The untrue rumors which developed in the County’s workplace in late spring or early summer of 2001 were distressing to Dearth, as they would be to any employee. However, in the end, these rumors provided a legal benefit. Dearth was able to show that his employer knew of the rumors and believed them. They thought he was sicker than he really was. Regarding an employee as disabled when the employee is not actually disabled, and acting upon that belief, can be a violation of the Americans with Disabilities Act, as Judge Stadtmueller eventually pointed out.7
Despite the fact that Dearth’s case was strong, the County elected to file a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Rule 56 is a docket-clearing rule. The party moving for summary judgment must prove that, “. . . based upon admissible evidence provided to the Court, there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law.” F.R.Civ. Pro. Rule 56(c) and (e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S. Ct. 2548. Thus, the County hoped that by filing its motion, it could eliminate some or all of Dearth’s claims.
Lawyers Kira Loehr and Linda Harfst filed Dearth’s response to the Defendants’ motion in February 2004. On September 29, 2004, they received Judge Stadtmueller’s decision, which denied Defendants’ motion in its entirety. Judge Stadtmueller determined that the note from Dearth’s physician returning Dearth to work, received by the County on August 6, 2001, was a sufficient communication. If the County wanted to seek further clarification, it could do so, but the court verified that under the FMLA, Dearth “ . . . had the right to be employed in the former or equivalent position while the inquiry was being made.”8 Judge Stadtmueller further observed that the County was not within its rights to delay returning Dearth to work until after Concentra cleared him. He pointed out, “Based upon the clear language in the regulations, the court believes that the defendants’ interpretation of the regulations is incorrect.”9 He also emphasized that the defendants’ arguments in support of their delay had been directly addressed and rejected by other federal courts.10
On October 6, 2004, Defendants’ counsel notified Judge Stadtmueller that Defendants waived any further challenge to liability in Dearth’s case. Dearth’s attorneys Linda Harfst and Kira Loehr then moved for an order granting liability against all defendants, and ordering the case to mediation on the issue of damages. Judge Stadtmueller granted this motion. Magistrate Judge Patricia J. Gorence then mediated the final resolution on November 23, 2004.
WPPA’s Role Crucial to the Outcome
WPPA took the first steps to question the work place decisions being made in Dearth’s case. Although it was not clear at first exactly what Dearth’s medical situation was, nor exactly what his claims might be, WPPA decided to provide a limited amount of funding to enable Dearth to obtain a legal assessment, because his situation could easily be replicated in other bargaining units. That assessment would enable WPPA to provide better service to other members.
Dearth’s union co-workers enabled him to stay on the health insurance so crucial to his well-being when he had no income in 2001. During the more than three years that it took Dearth’s case to progress through the court system, union representatives provided support, representation, and reassurance to workers in Dearth’s bargaining unit.
The resolution of Dearth’s case ensures that the WPPA will be fully reimbursed for the amount it expended to assist Dearth in 2001. Also, a way will be found to refund to the union the monies originally provided by co-workers for Dearth’s health insurance. The dollars then can be used for the benefit of other union workers who may need assistance.
1. Deposition of James Richter, November 20, 2003, p. 42.
2. Deposition of Michael Giese, November 21, 2003. p. 35.
3. Richter also testified that he had heard that Dearth needed a lung transplant. Deposition of James Richter, November 20, 2003, p. 18.
4. Expert witness Stuart Levy, M.D., explained, “Mr. Dearth was able to exercise to a MET level of 10.4 on October 26, 2001 wearing an SCBA. Work which can be performed at a MET level of 10 or less includes: forestry, trimming trees, shoveling, digging ditches, heavy shoveling (more than 16 lbs per minute), vigorous farming activity including baling hay and cleaning a barn, using heavy tools (not power) such as a shovel, pick, tunnel bar or spade . . . . All of these tasks require an adult male in excellent physical condition.” Affidavit of Stuart Levy, M.D., p. 2 paragraph 6, December 16, 2003.
5. Deposition of Mark Dearth, December 17, 2003, p. 24.
6. Deposition of Laura Stauffer, November 20, 2003, p. 33.
7. Order, September 28, 2004, pp. 8-9.
8. Order, September 28, 2004, p. 6.
9. Order, September 28, 2004, p. 5.