Issue: Qualification/Discrimination-Disability; Methods and Means/Counseling; Ruling Date: November 27, 2001; Ruling #2001-184; Agency: Department of Conservation and Recreation; Outcome: Not qualified.

In the matter of Department of Conservation and Recreation/ No. 2001-184

November 27, 2001

The grievant has requested a ruling on whether his July 2, 2001 grievance initiated with the Department of Conservation and Recreation (DCR) qualifies for a hearing. The grievant alleges that (1) a counseling memo he received on June 19, 2001 is more serious in nature than an "informal supervisory action" and should qualify for a hearing, (2) that he has been discriminated against based on a disability or an "agency-perceived" disability, and (3) that the Department has made accommodations to other conservation officers in the past and similar accommodations should be made for him. As relief, the grievant requests that the Department reclassify his position or provide alternative methods for meeting agency standards. Furthermore, he asks that negative statements concerning his job performance be retracted and that he be reimbursed for costs related to his grievance. For the reasons discussed below, the issues raised in his grievance are not qualified for a hearing.

The grievant was employed as a Chief Ranger at DCR. ¹According to his job description and agency policy, chief rangers are required to obtain conservation officer certification within two years of their initial employment. ²The Department perceives law enforcement as a critical element of the Chief Ranger position, as a matter of employee and public safety, since "only sworn conservation officers can effect arrests and need to be present when the possibility of that need exists." ³The officers must receive their training from the training academy with which the Department is associated, and since July 1, 1999, DCR has been a member of Cardinal Criminal Justice Academy.

The grievant has been with DCR since October 10, 1997. There was a training academy scheduled in February 1999, but because of the agency need for him to focus on his concession duties, the grievant could not attend. ⁴Another session was scheduled in July 1999, but due to a back injury, the grievant was unable to attend. Again, in February 2000, because of agency need, the grievant was not enrolled in the training academy, and because of another, unrelated injury, the grievant was not able to attend the July 2000 session.⁵ DCR provided an extension for the grievant, but noted that it was critical that he attend training the following year.

In June 2001, the grievant’s physician notified the Department that the grievant was not fit for duty at the Basic Law Enforcement Academy scheduled for July 2001, because he was still recovering from his 2000 injury to his shoulder. On June 19, 2001, the State Parks Director notified the grievant in a memorandum that it was imperative that he attend the July 2001 law enforcement training. He noted that allowances had been made in the past due to his injuries, but that it would not be responsible for the Department to continue accommodating the grievant. He reminded the grievant that law enforcement is a critical job element of his position and that he would be terminated if training was not completed by October 1, 2001. The memorandum further informed the grievant of other positions available in the Department that do not require law enforcement among the duties.

The grievant filed his grievance on July 2, 2001, challenging the appropriateness of the June 19 memorandum. He claims that he is entitled to an accommodation under the Americans with Disabilities Act and refers to a group of officers who were not required to undergo law enforcement training. Further, he requests that DCR reclassify his position so that he may continue his employment without law enforcement certification. The Department’s response is that law enforcement is a critical element of the job and that failure to complete the required training precludes the grievant from performing this essential function of his job. Other conservation officers have had to assume the grievant’s law enforcement duties. Management also notes that the grievant was given fair warning a year ago, has already been granted an extension to the required two-year window for receiving training, and that future extensions would not be appropriate. DCR is not willing to change the nature of the grievant’s job or the training academy that they use. Moreover, the third step respondent stated that "[i]n the past when others have encountered obstacles to completing required law enforcement training, they have been instructed that they must meet the conditions of their jobs or they must leave their positions." ⁶

In his request for this Department’s ruling, the grievant alleged that the June 19, 2001 letter was more serious in nature than an "informal supervisory action" and should qualify for a hearing. By statute and under the grievance procedure, management is reserved the exclusive right to manage the affairs and operations of state government. Inherent in this authority is the responsibility to advise employees of observed performance problems. The Department of Human Resource Management (DHRM) has sanctioned the use of counseling memoranda as an informal means for management to communicate to an employee concerns about his or her behavior, conduct, or performance. DHRM does not recognize such counseling as disciplinary action under the Standards of Conduct. ⁷Further, under the grievance procedure, informal supervisory actions, including counseling memoranda, do not qualify for a hearing absent a claim of discrimination, retaliation, or misapplication or unfair application of policy.⁸

In this case, the letter to the grievant dated June 19, 2001 was intended to be counseling in nature. It merely communicated to the grievant the Department’s concern that he had not yet fulfilled his job duty of law enforcement, warned him of the consequences of not completing basic training, and provided him with other employment options. No employment action was taken with this memorandum. While this counseling memorandum was serious in nature, as it indicated that the grievant’s position as Chief Ranger was in jeopardy, it was nonetheless an informal supervisory action. Accordingly, this issue does not qualify for a hearing, unless the grievant claims discrimination, retaliation, or a misapplication of policy. In this case, the grievant alleges that he has been discriminated against based on a disability and that there has been an unfair application of policy, since accommodations have been made in the past for other conservation officers.⁹

The grievant contends that his job-related injury is a disability that it is covered under the American with Disabilities Act (ADA). The ADA makes it unlawful to "discriminate against a qualified individual with a disability because of [his] disability." ¹⁰ Grievances that qualify for a hearing must present evidence raising a sufficient question as to whether the grievant (1) has a disability, (2) is otherwise qualified for the job, and (3) has experienced some adverse employment action because of his disability.¹¹

(i)Does the grievant have a disability?

The ADA defines "disability" as (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such an impairment, or (3) being regarded as having such an impairment. ¹²Examples of "major life activities" include caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. ¹³ The EEOC Interpretive Guidance Manual also includes sitting, standing, lifting, and reaching.

The grievant claims that he has a disability that substantially limits the major life activity of working. To demonstrate that an impairment substantially limits the major life activity of work, a grievant must show a significant restriction in the "ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities." ¹⁴Factors that should be considered include, among other things, the nature and severity of the impairment; the duration or expected duration of the impairment; and whether any long term or permanent impact is expected."¹⁵

The grievant has provided no evidence that he is unable to perform in a broad range of jobs. In fact, throughout the grievance process, the grievant has maintained that he does not perceive himself has having a "disabling" injury. ¹⁶Moreover, his doctor submitted notes to that effect to both the grievant and to management. The grievant does claim however that the Department regards him as having a disability, the third test for determining whether an individual has a disability. However, management has stated repeatedly that it does not perceive the grievant as having a disabling injury. Rather, management views the injury as being temporary in nature and expects that the grievant will fully recover. They base this assessment of his injury on the grievant’s own statements and on the statements of the grievant’s physician.

It is worth noting that during this Department’s investigation, the grievant reported that his doctor’s diagnosis of his condition has changed since the filing of the grievance. The grievant said that it appears his shoulder injury is, in fact, permanent in nature and will limit the use of his arm. He stated that he will be unable to lift items or to raise his arm over his head. Given this new information, the grievant may be found to have a disability that limits a major life activity. If this is the case, it is necessary to consider the second element of disability discrimination -- whether the grievant is otherwise qualified for the job of Chief Ranger.

(ii)Is the grievant "otherwise qualified?"

To be afforded protection from disability discrimination under the ADA, the grievant must establish that he is an "otherwise qualified individual," in other words, an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. ¹⁷The "essential functions" are the "fundamental job duties of the employment position of the individual with a disability."¹⁸ Courts have considered a number of factors in determining what functions are essential. These factors include, but are not limited to, the employer’s judgment regarding which functions are essential, the number of employees available among whom the performance of the functions can be distributed, the amount of time spent performing the functions, the consequences of not performing the function, and the actual work experience of past or current incumbents in the same or similar jobs. ¹⁹Another consideration is whether a needed accommodation is reasonable. Courts have recognized that an accommodation is unreasonable if it requires the elimination of an "essential function."²⁰

In the present case, management offered to transfer the grievant to other positions that do not require law enforcement training. Under the ADA, when a disabled employee cannot be reasonably accommodated in his current position, a reasonable accommodation can be reassignment to a vacant position including reassignment to a lower grade position if necessary. ²¹The grievant has offered other suggestions that would allow him to remain in his Chief Ranger position. Specifically, he requested permission to enroll in another training academy that has less stringent standards than Cardinal Criminal Justice Academy. The Department commented that it chose Cardinal as its training facility because of its high standards and requires that training for all Chief Rangers. Another suggestion the grievant offered is that he be provided with supplemental training that was provided to conservation officers in 1989. The Department responded that those officers were employed before DCR required law enforcement training, and to provide this sort of training to the grievant would be inconsistent with current standards. To allow the grievant to forego certification in law enforcement would effectively eliminate an essential function of a conservation officer -- to perform law enforcement duties. Thus, such an accommodation would not be reasonable under the law. ¹³The Department appropriately sought to transfer the grievant to another position as a reasonable accommodation. While the grievant was displeased with the offer of transfer, under the ADA, an employee need not receive the accommodation that he prefers or requests -- the employer need only provide an effective accommodation. For all the above reasons, his ADA claim does not qualify for a hearing.

For an allegation of misapplication of policy or unfair application of policy to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy. If a claim of policy misapplication is qualified and proven at a hearing, the relief that a hearing officer can order is limited to directing the agency to reapply the policy from the point at which it was misapplied. A hearing officer may not order damages or attorney’s fees, or any other prospective relief.²⁴

The grievant claims that accommodations have been provided in the past for officers who did not receive law enforcement training. He refers specifically to the conservation officers who received supplemental training in 1989 and requests that similar training be provided to him. However, as noted above, conservation officers were not required to receive law enforcement training prior to that date. When DCR first required officers to be certified, there was a one-time opportunity for already-hired officers to receive supplemental training. Since then, all newly hired officers have had as a condition of employment the completion of law enforcement training at the academy with which the Department is associated. As such, this Department can find no unfair application of policy, and this issue does not qualify for a hearing.

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, he should notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court’s decision, the agency will request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.

Neil A. G. McPhie, Esq.
Director

Leigh A. Brabrand
Employment Relations Consultant