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Tracy Williams vs. City of Chattanooga

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Law

Mailed On:7-10-2014 BEFORE THE CITY COUNCIL OF THE CITY OF CHATTANOOGA

IN THE MATTER OF: CITY OF CHATTANOOGA, DOCKET NO. 56.00-121051J Petitioner, VS. TRACY WILLIAMS, Grievant.

INITIAL ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DISMISSAL OF APPEAL

The City of Chattanooga (City) filed a motion for summary judgment on February 19, 2014, and a reply to Grievant’s response on May 14, 2014. The Grievant filed a response to the motion for summary judgment on May 9, 2014. The essence of the City’s motion is that there are no material facts in dispute, and that these facts provide a “reasonable basis” for the termination of Grievant’s employment pursuant to the City Code. After due consideration it is determined that the City’s motion is GRANTED and this matter is DISMISSED. This decision is based on the following findings of fact and conclusions of law” I. STATEMENT OF THE CASE Tracy Williams (“the Grievant”) was terminated from his employment with the City of Chattanooga on April 29, 2013 for violation of the following Chattanooga City Code provisions: 1.

Sec. 2-164. Unauthorized Absences

No employee shall absent himself/herself from duty without authorized leave, except in the case of sickness or emergency. An employee who is absent without authorized leave three (3) consecutive working days shall be deemed to have abandoned his/her position and to have resigned unless he/she shall, within a period of ten (10) working days next succeeding such three (3) days, prove to the satisfaction of the supervisor that such failure was excusable; provided, however, that nothing contained in this section shall be construed as preventing a supervisor from recommending to his/her department head or to the mayor suspension or dismissal of an employee because of unauthorized absence.

2.

Sec. 2-174. Discipline, dismissal, suspension or demotion – authority of the Mayor and department heads; appeals. (b) Disciplinary action up to and including dismissal may be taken for any just cause including, but not limited to, the following:

(7) Absence from work without proper notification or authorization; **** (c) The Mayor or department head may, for just cause, discipline any City employee. Such disciplinary action may include demotion, suspension and or dismissal.

**** The Grievant subsequently filed an appeal. STATEMENT OF FACTS Randy Parker served as the Chief of the Chattanooga Fire Department (“CFD”) from April 2009 until May 2013. the CFD since April 2012.

Lieutenant Shawn O’Kelley has served as the Safety Officer for As a Safety Officer, Lt. O’Kelley is responsible for Incident Safety,

Employee Injuries and Employee Physicals. Consequently, he is in direct contact with the

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physicians from the City’s healthcare provider, Marathon Health, Inc. (“Marathon”) concerning all Injury on Duty claims (“IOD”), and all CFD personnel medical records are filed in his office. Grievant Tracy Williams (“the Grievant”) was employed as a Senior Firefighter with the CFD from December 8, 2000 until his termination on April 29, 2013. On October 18, 2011, the Grievant injured his ankle as he stood from a kneeling position and began to walk, spraining his right ankle while on a rooftop.

The City initially treated the Grievant’s ankle injury as an

injury-on-duty under its Injury On Duty Program (“IOD”), and on October 19, 2011, he was sent for evaluation to Marathon Health Inc., the City’s provider of medical services (“Marathon”). The City’s Work Status Report indicated that the Grievant was able to return to work with the following restrictions: No lifting over 20 lbs.; No carrying over 20 lbs.; No climbing stairs or ladders; Weight bearing to tolerance; Right ankle compression bandage. Due to his work restrictions, the Grievant was placed on alternative duty beginning on October 19, 2011 and continuing until March 18, 2012. From March 19, 2012 and continuing through June 18, 2012, the Grievant was on leave and received compensation through the City’s IOD program. On June 19, 2012 and continuing through October 20, 2012, the Grievant availed himself of all his accumulated personal leave after the CFD learned that he was being treated for a pre-existing personal medical problem. The Grievant sent an email to Lt. O’Kelley on August 15, 2012 informing him of the Grievant’s intention to speak with the Fire and Police Pension Fund Board about his retirement. A month later, on September 20, 2012, Lt. O’Kelley sent the Grievant a letter informing him that he had not been in contact on a weekly basis with his captain about his work status as required. Lt. Kelley informed the Grievant that his personal leave would be exhausted on approximately

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October 12, 2012 and asked him to contact him if he was interested in pursuing benefits under the Family Medical Leave Act (“FMLA”). Thereafter, on October 9, 2012, the Grievant submitted his application to the US Department of Labor for benefits under FMLA for a personal medical condition. The Grievant was approved for benefits beginning on October 20, 2012 and ending on January 12, 2013. He was informed that he would be required to present a fit-for-duty certificate to be restored to employment. The Grievant sent an email dated January 9, 2013 to Lt. O’Kelley and others, informing them of his intention to seek disability retirement at the next pension board meeting. Chief Parker then sent the Grievant a letter dated January 16, 2013, informing him that he had exceeded his available leave benefits provided by the Chattanooga City Code and ordered the Grievant to return to his job assignment by no later than 7:00 a.m. on January 19, 2013, with a medical clearance from the City of Chattanooga’s medical provider stating that he was fully capable of serving as a firefighter.

In the January 16, 2013 correspondence, Chief Parker

informed the Grievant if he did not return on the specified date, meeting the specified conditions, a hearing would be scheduled to determine his employment status with the CFD. The Grievant presented himself for a Fit For Duty exam at Marathon on January 17, 2013 where he was able to return to work with the following restrictions: No carrying over 50 lbs.; No stair or ladder climbing except with handrail; No running, carrying stretchers, fast walking on uneven surfaces; current activity restriction appear necessary due to a “personal” medical condition. Additionally, as the Safety Officer, Lt. O’Kelley received an email from Dr. Matt Hine, the Director of Occupational Health for Marathon wherein Dr. Hine opined that “it appears Mr. Williams needs activity restrictions to protect safety of self/others…These restrictions are

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for an indefinite duration.” Chief Parker notified the Grievant in a February 12, 2013 letter he had not contacted the CFD regarding his employment situation. Accordingly, he ordered the Grievant to report to his office on February 20, 2013, to discuss the Grievant’s intentions. Chief Parker also informed the Grievant that failure to report to Chief Parker’s office on February 20, 2013 would result in a hearing to determine his employment status with the CFD. On February 21, 2013 via email, the Grievant requested leave without pay from the CFD. Chief Parker notified the Grievant in a February 22, 2013 letter that he was granting the Grievant a 30-day leave without pay beginning on February 22, 2013 and ending on March 24, 2013. Chief Parker informed the Grievant in the February 22, 2013 letter that if his issues had not been resolved by March 24, 2013, a meeting and/or hearing would be scheduled to determine his employment status. The Grievant signed the February 22, 2013 letter. Following the February 22nd letter, Chief Parker again informed the Grievant in a letter dated March 26, 2013 that he had exhausted all available leave benefits and no additional leave would be approved. The Grievant was ordered to return to his job assignment by no later than 7:00 a.m. on March 28, 2013, with a medical clearance from the City of Chattanooga’s medical provider stating that he was fully capable of serving as a firefighter.

In the March 26, 2013

correspondence, the Grievant was informed that if he did not return on the specified date, meeting the specified conditions, a hearing would be scheduled to determine his employment status with the CFD. On April 15, 2013, the Grievant underwent a Functional Capacity Evaluation (“FCE”) to determine his fitness to return to work. The FCE classified the Grievant as having a Medium Physical Demand Characteristic (“PDC”) strength level for work. The Firefighter job requires that a person have a Very Heavy PDC strength level for work.

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Pursuant to the FCE, the

Grievant does not meet the standards for a Very Heavy PDC strength level and, thus, he is not qualified to perform the functions of a Chattanooga Firefighter. Because the Grievant had exhausted all of the leave available to him and because of the results of the FCE, Chief Parker sent the Grievant a letter on April 25, 2013, notifying him of the charges against him. The Grievant was ordered to report to Chief Parker’s office for a hearing on April 29, 2013 at 1:30pm. On April 29, 2013, a hearing was conducted at which the Grievant was present. The Grievant was afforded the opportunity to have a representative present. He was also given an opportunity to participate and give an explanation for his actions. The Chattanooga City Code provides the following regarding unauthorized absences: Sec. 2-164. Unauthorized absences. No employee shall absent himself/herself from duty without authorized leave, except in the case of sickness or emergency. An employee who is absent without authorized leave three (3) consecutive working days shall be deemed to have abandoned his/her position and to have resigned unless he/she shall, within a period of ten (10) working days next succeeding such three (3) days, prove to the satisfaction of the supervisor that such failure was excusable; provided, however, that nothing contained in this section shall be construed as preventing a supervisor from recommending to his/her department head or to the mayor suspension or dismissal of an employee because of unauthorized absence.

The Chattanooga City Code provides the following grounds for disciplinary action: Sec. 2-174. Discipline, dismissal, suspension or demotion – authority of the Mayor and department heads; appeals. (b) Disciplinary action up to and including dismissal may be taken for any just cause including, but not limited to, the following:

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(1) Incompetence or inability to perform duties of position; *** (7) Absence from work without proper notification or authorization; *** (c)

The Mayor or department head may, for just cause, discipline any City employee. Such disciplinary action may include demotion, suspension and or dismissal. ***

Following the hearing, Chief Parker sustained the charges of violations of Chattanooga City Code Sections 2-164, 2-174(b)(1) and 2-174(b)(7) against the Grievant. Chief Parker determined that the proper discipline for the Grievant’s violations was to terminate the Grievant’s employment with the Chattanooga Fire Department effective April 29, 2013. On April 29, 2013, the Grievant signed the disciplinary letter dated April 29, 2013 and acknowledged receipt of same. In the April 29, 2013 correspondence, the Grievant was notified of his right to appeal the disciplinary actions to an Administrative Law Judge. Section 13.44 of the Chattanooga City Charter provides the following: All firemen and policemen of the City of Chattanooga shall have safe tenure on their jobs so long as they properly and efficiently fulfill the duties of their respective positions. They shall not be discharged, or suspended for political or religious reasons or for any other unjust or arbitrary cause. This Act [chapter] shall apply to all firemen and policemen of the City of Chattanooga serving as of the effective date of this Act [chapter]; provided, however, that this Act [chapter] shall apply only to those firemen and policemen who have been employed for more than one year. As part of his duties as a Senior Firefighter, the Grievant was responsible for basic firefighting activities, including responding to emergency calls, providing medical care to

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patients, and driving and pumping the fire apparatus as required. The Grievant’s job involves not only his own safety, but also the safety of his fellow firefighters and the public at large. Senior Firefighters are routinely called upon to respond to alarms and calls, sometimes providing medical treatment once arriving on scene.

The Grievant failed to properly and efficiently fulfill

his duties as a Firefighter in accordance with Chattanooga City Charter Section 13.44 by violating Chattanooga City Code Sections 2-164 and 2-174. Chief Parker afforded the Grievant all due process in the course of the investigation, disciplinary hearing, and termination. Chief Parker did not discharge the Grievant for any for political reasons or for any other unjust or arbitrary cause, or because of age, gender, race, religion, disability, national origin, protected veteran or military status, or political affiliations. II. STANDARD OF REVIEW Appeals of employment decisions of the City of Chattanooga are governed by Chattanooga City Code Section 2-174(t) in conjunction with the Tennessee Uniform Administrative Procedures Act, T.C.A. § 4-5-101 et seq., and the Uniform Rules of Procedure for Hearing Contested Cases before State Administrative Agencies, Rule 1360-4-1 et seq. Chattanooga City Code Section 2-174(t) sets out the burden of proof in Paragraph 6, in pertinent part [t]he ALJ shall determine if there is a reasonable basis for the employment decision. The ALJ shall affirm the employment decision if there is a reasonable basis for the decision or modify or set aside any decision of an Administrator on the basis of the evidence.

Construing the undisputed material facts in the light most favorable to the Grievant, it is CONCLUDED that the City of Chattanooga is entitled to summary judgment as a matter of law.

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Rule 56.04 sets forth the standard for summary judgment: summary judgment may be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.1993). The party seeking the summary judgment has the ultimate burden of persuasion “that there are no disputed, material facts creating a genuine issue for trial ... and that he is entitled to judgment as a matter of law.” If that motion is properly supported, the burden to establish a genuine issue of material fact shifts to the non-moving party. In order to shift the burden, the movant must either affirmatively negate an essential element of the nonmovant's claim or demonstrate that the nonmoving party cannot establish an essential element of his case. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8–9 (Tenn.2008). The moving party may not rest on conclusory assertions to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn.1998). When ruling on a motion for summary judgment, “[c]ourts must view the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party.” Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009) (citing Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997)). Accordingly, summary judgment should be granted “only when the facts and the reasonable inferences from those facts would permit a reasonable person to reach only one conclusion.” Giggers, 277 S.W.3d at 363 (citing Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). For summary judgment purposes in this case, it is the City’s burden to show that there is no genuine issue of material fact regarding the reasonableness of the decision to terminate the Grievant. Construing the undisputed material facts in the light most favorable to the Grievant, it is CONCLUDED that there was a reasonable basis for the City’s decision to terminate the

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Grievant based on his inability to perform his job duties, his unauthorized absences for three (3) or more days, and being absent without prior notification or authorization. III. RELEVANT LAW Section 13.44 of Charter for the City of Chattanooga provides the following with respect to Firefighters such as the Grievant [a]ll firemen and policemen of the City of Chattanooga shall have safe tenure on their jobs so long as they properly and efficiently fulfill the duties of their respective positions. They shall not be discharged, or suspended for political or religious reasons or for any other unjust or arbitrary cause. This Act [chapter] shall apply to all firemen and policemen of the City of Chattanooga serving as of the effective date of this Act [chapter]; provided, however, that this Act [chapter] shall apply only to those firemen and policemen who have been employed for more than one year. The Chattanooga City Code provides that employees may be dismissed for any just cause, including inability to perform the duties of one’s position and absence from work without proper notification or authorization. Additionally, an employee who is absent without leave for more than three (3) consecutive days without authorization is deemed to have abandoned his job and is subject to dismissal pursuant to Chattanooga City Code 2-164. In the present case, the Grievant was originally treated for what was thought to be an IOD claim as a result of an ankle injury on October 18, 2011. He was placed on work restrictions and given alternative duty from October 9, 2011 until March 18, 2012 and then received IOD compensation when he was placed on administrative leave until June 18, 2012.

After it was

discovered that the Grievant had a pre-existing personal medical problem that necessitated his absence from work, he availed himself to all of his personal leave from June 19, 2012 through October 20, 2012.

The Grievant was then approved for FMLA leave for his personal medical

condition with such leave ending on January 12, 2013. By January 2013, the Grievant had been

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on alternative duty, administrative leave through the IOD program, personal leave, and FMLA leave for almost 15 months. The Grievant was informed at the time he was granted leave through FMLA that he would need to present a Fit For Duty certificate in order to be able to return to work when his FMLA leave expired. On January 17, 2013, a Fit For Duty exam was performed where it was determined that the Grievant could return to work with the following restrictions: No carrying over 50 lbs.; No stair or ladder climbing except with handrail; No running, carrying stretchers, fast walking on uneven surfaces; current activity restriction appear necessary due to a “personal” medical condition.

Additionally, Lt. O’Kelley received an email from Dr. Matt

Hine, the Director of Occupational Health for Marathon wherein Dr. Hine opined that “it appears Mr. Williams needs activity restrictions to protect safety of self/others…These restrictions are for an indefinite duration.” From January 2013 through March 2013, the Grievant was continually informed by Chief Parker that he needed to report to work with medical clearance from the City’s medical provider and that failure to do so would result in a hearing to determine the Grievant’s employment status with the CFD.

The Grievant asked for additional unpaid leave several times during this same

time period which was granted. The Grievant’s job as a Senior Firefighter required him to perform basic firefighting activities, including responding to emergency calls, providing medical care to patients, and driving and pumping the fire apparatus as required.

It also involves not only the Grievant’s

safety, but also the safety of his fellow Firefighters and the public at large. Eventually the Grievant underwent a Functional Capacity Evaluation (“FCE”) to determine his fitness to return to work on April 15, 2013. The FCE classified the Grievant as having a Medium Physical

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Demand Characteristic (“PDC”) strength level for work; the position of a Firefighter however, requires that a person have a Very Heavy PDC strength level for work.

Accordingly, the

Grievant does not meet the standards for a Very Heavy PDC strength level and, thus, he is not qualified to perform the functions of a Chattanooga Firefighter. Because the Grievant had exhausted all of the leave available to him and because of the results of the FCE, Chief Parker sent the Grievant a letter on April 25, 2013, notifying him of the charges against him.

On April 29, 2013, a disciplinary hearing was conducted at which the

Grievant was present. The Grievant was afforded the opportunity to have a representative present. He was also given an opportunity to participate and give an explanation for his lengthy absence during the hearing.

Chief Parker determined that the proper discipline for the

Grievant’s violations was to terminate the Grievant’s employment with the Chattanooga Fire Department effective April 29, 2013. The Grievant was afforded all due process in this case, including continued extensions of unpaid leave and a disciplinary hearing at which he had the opportunity to have a representative present and at which he took advantage of the opportunity to speak on his own behalf regarding the charges against him. Despite being on leave for approximately 19 months and stating that he was seeking retirement from a position he can no longer perform due to his personal medical condition, the Grievant appealed his termination. Combining the FCE results with Dr. Hines’ opinion that the Grievant’s restrictions are necessary to protect safety of self/others…[and that] These restrictions are for an indefinite duration, it is abundantly clear that the Grievant cannot perform the duties of his position pursuant to Chattanooga City Code Section 2-174(b)(1). It is clear from the undisputed evidence in this case that the Grievant was terminated for a just and reasonable cause based upon his absences and his inability to perform his job duties.

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Accordingly, Chief Parker had a reasonable basis for terminating the Grievant based these violations which are specifically provided for in the Chattanooga City Code. IV. CONCLUSION Based upon the foregoing, it is hereby ORDERED that the City’s motion for summary judgment is GRANTED, the decision to terminate the Grievant’s employment is UPHELD, and the Grievant’s appeal of that termination is DISMISSED.

Entered and effective this ______ day of July, 2014. _____________________________ Rob Wilson Administrative Judge

Filed in the Administrative Procedures Division, Office of the Secretary of State, this _______ day of ____________________ 2014.

________________________________ J. Richard Collier, Director Administrative Procedures Division

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