THOMAS, Judge.
The Alabama State Personnel Board ("the Board") appeals from a judgment of the Montgomery Circuit Court ("the trial court") reversing an order of the Board that upheld the dismissal of Larry J. Clements from the Department of Youth Services ("the DYS"). We reverse and remand.
Clements was dismissed from his position as a Youth Services Security Officer with the DYS effective February 3, 2012. Clements timely appealed his dismissal to the Board. The Board then assigned this matter to an administrative law judge ("ALJ"); a hearing was held before the ALJ on May 2, 2012. The ALJ submitted a report to the Board recommending that Clements's dismissal be upheld. After hearing oral argument on August 14, 2012, the Board entered an order upholding Clements's dismissal. Clements filed a timely notice of appeal of the Board's order with the trial court on September 10, 2012.
The record indicates that the trial court received briefs from the parties and held a hearing on April 19, 2013, at the conclusion of which it rendered an oral judgment.
Clements is a former merit-system employee of the DYS. He was hired in 1994 as a security officer at the DYS's Vacca campus in Jefferson County; he remained in that job classification until he was dismissed effective February 3, 2012. Clements's performance appraisal states that the responsibilities for his position included: guards/patrols the entrance of the DYS institution; investigates law and departmental rules violations; attends/participates/leads meetings, workshops, training schools, and classes; and controls all access to and from the campus. The parties agree that Clements injured his wrist in 2006 as a result of an on-the-job injury; information contained in the record indicates that Clements did not report back to work for six to eight weeks after he sustained the injury. The record also indicates that Clements returned to work on "light duty" and was assigned by his supervisor to work exclusively at the front gate of the campus;
In 2010, the DYS conducted a campus-wide assessment in response to numerous requests for accommodations due to disabilities. During that assessment, the DYS discovered that Clements's personnel file did not include medical documentation regarding his injury. On November 18, 2010, Clements attended a meeting with DYS officials. Clements was instructed to complete an Essential Functions Checklist, a Uniform Medical Authorization, and an Employee Questionnaire and to have his physician complete a Physician-Medical Questionnaire. The meeting was documented in a memorandum from James Thomas, the Vacca Campus Administrator, to Clements that stated that Clements was currently under a medical restriction that interfered with his ability to perform all of his employment duties. The memorandum further stated that the DYS sought to evaluate whether Clements's medical restrictions qualified as a disability pursuant to Americans with Disabilities Act ("the
Clements received a second memorandum from Thomas on January 11, 2011, that stated that Clements had not returned the completed Physician-Medical Questionnaire and instructed him to do so. The memorandum also stated that failure to provide the requested documentation could result in disciplinary action, including potential termination of employment. On February 29, 2011, Clements received a written warning from James Kent, the DYS Assistant Administrator of Institutional Services, reiterating that the DYS had not received the completed Physician-Medical Questionnaire and that failure to return the completed questionnaire could result in disciplinary action. Dr. Victoria Masear, Clements's physician, completed the Physician-Medical Questionnaire on August 1, 2011; Dr. Masear indicated that Clements suffered from radial sensory neuroma and that he could not perform repetitive wrist motions or grip and that he was unable to restrain another person. Dr. Masear further indicated that it was unknown whether the injury was temporary or permanent at that time.
According to information in the record, Clements next received a letter from J. Walter Wood, Jr., the DYS Executive Director, dated December 2, 2011. That letter stated:
The hearing took place as scheduled on December 20, 2011, at DYS headquarters. The hearing was conducted by Tim Davis, the DYS Deputy Director for Programs and Client Services; Michael Meyers, DYS legal counsel, attended on behalf of the DYS. Clements was also present with his legal representatives, Theron Stokes and
Thereafter, Clements received a letter from Wood dated February 2, 2012, which stated that, "[b]ased on the testimony and/or documents presented during the [December 20, 2011,] hearing, there was evidence to support your inability to perform the essential functions, duties, responsibilities and/or results of your position with or without reasonable accommodations" and which ordered Clements's dismissal from the security-officer position at the close of business on February 3, 2012. Clements filed a timely appeal of his dismissal to the Board; a hearing was thereafter held before the ALJ. Kent testified at the hearing before the ALJ that the DYS could not create a permanent job modification because it was already understaffed and because placing a security officer on light duty would stretch its already thin resources. Clements testified that he would be unable to respond to an "all call"
Upon filing a timely appeal to the trial court, Clements argued that he had been denied due process, that the evidence did not support his dismissal, and that his dismissal was barred by the "statute of limitations" set out in § 36-26-29, Ala. Code 1975. In its judgment, the trial court found that Clements's
The trial court reversed the decision of the Board and reinstated Clements to his security-officer position with backpay and benefits.
The Board timely appealed to this court and argues the following in its brief on appeal: (1) that substantial evidence supported
Alabama State Pers. Bd. v. Dueitt, 50 So.3d 480, 482 (Ala.Civ.App.2010).
The trial court, in its judgment, found that "[Clements's] employment record was good and that there was no discipline, progressive or otherwise, that would warrant termination." We express no opinion regarding the accuracy of that statement. Clements was clearly not dismissed due to disciplinary issues; rather, it is clear that Clements, who admitted as much, could not perform all the essential functions of his job. Clements's employment with the DYS as a security officer is governed by the State Merit System Act,
Fulton v. Department of Pub. Health, 494 So.2d 73, 75 (Ala.Civ.App.1986).
To reiterate the standards stated above, in order for this court to affirm the decision of the Board to uphold the dismissal of Clements, that decision would have to be supported by "substantial evidence" that Clements's dismissal was for the good of the service. See Dueitt, supra, and Fulton, supra. Substantial evidence is "`relevant evidence that a reasonable mind would view as sufficient to support the determination.'" Dueitt, 50 So.3d at 482 (quoting Ex parte Personnel Bd. of Jefferson Cnty., 648 So.2d 593, 594 (Ala.Civ.App. 1994)). Clements argues that his assignment to the front gate was an accommodation that enabled him to successfully perform the job duties that were assigned to him. However, by his own admission, Clements was unable to perform several of the essential functions of his job. In addition, there was testimony from DYS officials that Clements's inability to perform certain essential functions of his job, such as restraining students, could negatively impact DYS operations.
In Fulton, supra, Fulton was dismissed from his employment with the Department of Public Health ("the DPH") because of a felony conviction for manufacturing marijuana. 494 So.2d at 74. In affirming the dismissal, this court stated that the DPH has a statutory responsibility to enforce the laws relating to drugs and that Fulton's "[m]anufacturing drugs certainly interfered with [the DPH's] effective discharge of its duties and therefore made Fulton's continued employment harmful to the public interest." Id. at 75. Likewise, in the case before us, the mission of the DYS is to enhance public safety by securing those youth who are adjudicated juvenile offenders. The Vacca campus is a secure juvenile-correctional facility that houses juvenile males aged 12 to 15 years old. Clements's inability to perform arguably the most essential functions of the security-officer job — physically restraining students and participating in training — cannot be considered to be in the public's best interest.
Clements appears to argue that, because he successfully performed the duties assigned to him, he was successfully performing all the essential functions of the security-officer job as it pertained to him.
Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1257 (11th Cir.2007). It is well documented throughout the record and in Clements's personnel file that the essential functions of the security-officer job included physically restraining individuals and responding to disturbances.
By his own admission, Clements cannot perform all the essential functions of his job; he further admitted that there is no accommodation that the DYS could provide that would enable him to perform all the essential functions of his job. Therefore, he is not a "qualified individual" — "someone with a disability who, `with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.' 42 U.S.C. § 12111(8); see also Earl [v. Mervyns, Inc.], 207 F.3d [1361,] 1365 [(11th Cir.2000) ]." Holly, 492 F.3d at 1256.
Based on the foregoing, we conclude that the trial court erred insofar as it found that there was not sufficient evidence to support Clements's dismissal.
The Board next argues that the trial court erred by finding that Clements was denied due process.
Alabama State Pers. Bd. v. Garner, 4 So.3d 545, 550 (Ala.Civ.App.2008).
In the December 2, 2011, letter from Wood, Clements was informed that a hearing was scheduled to ascertain whether he could perform the essential functions of his job, that dismissal was a potential result of the hearing, and that Clements was allowed to have an attorney present and to present witnesses and other evidence at the hearing. The hearing proceeded as
Clements appears to argue that he was not aware that the initial assessment of his ability to perform the essential functions of his job could ultimately lead to his dismissal. Clements also appears to attack the sufficiency of the statement of facts submitted by the DYS pursuant to § 41-22-12(b)(3) and (4), Ala.Code 1975,
The Board next argues that the trial court erred by finding § 36-26-29 applicable to the present case. Section 36-26-29 provides:
In its brief, the Board argues that that statute relates to disciplinary actions resulting from insubordinate behavior. The Board further asserts that § 36-26-29 "has no application to an on-going job performance issue in which the agency attempts to work with the employee," as was the case with Clements. Clements argues on appeal that the statute serves as an absolute bar to his dismissal. This argument appears to be based upon the premise that the statute of limitations promulgated by § 36-26-29 began to run when Clements was injured in 2006. As we have noted, Clements was dismissed from his position because he was physically unable to perform the essential functions of his job. Moreover, we see no evidence in the record indicating that the DYS was notified in 2006 as to whether Clements's injury was temporary or permanent. The Board argues that, because Clements was dismissed due to his inability to perform the essential functions of his employment and not due to disciplinary issues, the ADA, not § 36-26-29, is the relevant authority in the present case. We agree. Our research has not revealed Alabama caselaw directly on point for either argument. The Board, however, has cited in its brief on appeal federal caselaw that we find instructive in the present case.
Champ v. Baltimore County, 884 F.Supp. 991 (D.Md.1995), aff'd, 91 F.3d 129 (4th Cir.1996), is analogous to the case at bar. In Champ, a police officer suffered an off-duty injury in which he lost all use
Likewise in McDonald v. State of Kansas, Department of Corrections, 880 F.Supp. 1416, 1419 (D.Kan.1995), a correctional officer had received accommodations for three years for his obesity in the form of specially ordered uniforms, a specially reinforced chair, temporary light duty, and the use of a modified shake-down procedure. In his third year of employment, the correctional officer was diagnosed with congestive heart failure and initially assigned to temporary light duty. Id. However, once it became apparent that his condition would not improve, he was dismissed from his employment. Id. at 1421. The correctional officer asserted to the trial court that he had been denied reasonable accommodations. Id. at 1423. The Kansas Department of Corrections responded that its policy allowed for temporary and long-term light-duty assignments to allow employees to recover from temporary illnesses or injuries but that there were no permanent light-duty positions. Id. at 1423 n. 2.
In upholding the dismissal, the McDonald court stated:
McDonald, 880 F.Supp. at 1423.
A last example is Hill v. Harper, 6 F.Supp.2d 540 (E.D.Va.1998). Hill was employed by the City of Petersburg Sheriff's Department in 1977 as a deputy sheriff. Id. at 541. His duties included working
Hill argued to the trial court that the sheriff could have reasonably accommodated him by allowing him to continue to work exclusively in the control room. Id. at 544. Hill further pointed out that the sheriff, through his agent the jail administrator, had already accommodated him in this fashion for the past three years. Id. In finding for the sheriff, the Hill court found that
Id.
We agree with the decisions of the federal courts that an employer should not be punished for its efforts to afford an employee an opportunity to recuperate from an injury by temporarily assigning the employee to a light-duty position. It has not escaped our attention that the DYS might have been remiss in monitoring Clements's injury and his progress recovering from the injury. However, it is undisputed that the DYS was not aware that Clements's injury might be permanent until November 2010. Even assuming that § 36-26-29 is applicable to this set of circumstances, the DYS clearly took action within the three-year period prescribed by that statute.
The Board lastly argues that the trial court erred by awarding Clements "back pay and other benefits to which [Clements] would be entitled had he not been unlawfully terminated." However, because we have concluded that the trial court erred by reinstating Clements, this issue is moot, and we pretermit further consideration of it.
Based on the foregoing, the judgment of the trial court in favor of Clements is reversed, and this case is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
THOMPSON, P.J., and PITTMAN and DONALDSON, JJ., concur.
MOORE, J., concurs in the result, without writing.
