Ala. State Pers. Bd. v. Clements, 2120726.

161 So.3d 221

29 A.D. Cases 322

ALABAMA STATE PERSONNEL BOARD

v.Larry J. CLEMENTS.

2120726.

Court of Civil Appeals of Alabama.

Feb. 14, 2014.

Luther Strange, atty. gen., and Alice Ann Byrne and Tara S. Hetzel, asst. attys. gen., Alabama State Personnel Department, for appellant.

Nancy E. Perry and Theron Stokes, Alabama Education Association, Montgomery, for appellee.

Opinion

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.

Facts and Procedural History

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.¹ The Board filed an appeal with this court on May 24, 2013. This court entered an order on September 26, 2013, reinvesting the trial court with jurisdiction to enter a written order in compliance with Rule 58(a) and (b), Ala. R. Civ. P.; the trial court entered a final judgment on October 16, 2013, and this court entered an order on October 31, 2013, reinstating the appeal.

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;² Clements continued to work exclusively at the front gate until his dismissal. Clements's annual performance appraisals for the last several years stated that he was “on job restrictions due to on the job injury.”

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 ADA”) and whether Clements could perform the essential functions of his position with or without reasonable accommodations. The Essential Functions Checklist listed 11 essential functions of the security-officer job; Clements indicated that he could not perform 7 of the essential functions, including transporting students, reinforcing staff in maintaining discipline and control, and participating in departmental training programs. On the Employee Questionnaire, Clements indicated that he had a disability, that the disability was permanent, and that the DYS could not provide an accommodation that would enable him to perform all of his job functions.

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:

“Pursuant to your receipt and/or completion of the Mandatory Employment Functions and Performance Assessment and/or the completion [of the other documents,] I have received a recommendation that employment action, including possible demotion and/or suspension and/or dismissal, be taken regarding your employment as a Youth Services Security Officer. The recommendation reveals your failure to perform the essential functions for your position. Thus a hearing should be conducted regarding your ability to perform the essential functions, duties, responsibilities and results of your position with or without reasonable accommodations.

“A fact finding hearing will be conducted on Tuesday, December 20, 2011, at 10:30 a.m. in the Conference Room at the DYS Central Office, Mt. Meigs, Alabama. The hearing will be conducted by either me or my designee. I will review information presented and notify you of my decision regarding any possible necessary employment action. At the hearing, you may present verbal and written information[;] for example[,] you may request a reasonable accommodation, produce witnesses and be represented by counsel if you choose. I consider your attendance to be mandatory, but if you do not attend, I will be forced to make my decision based on the information available to me.”

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 Charles Norton.³ At the beginning of the hearing, Davis informed Clements that the purpose of the hearing was to ascertain whether he could “fully perform the essential job duties and responsibilities of [his] job classification.” Davis also stated that the hearing constituted the agency-employee interactive process, as required under the ADA. At the hearing, Clements confirmed his responses to the Essential Functions Checklist. Clements admitted at the hearing that he could not physically restrain a student and that he would have to call another security officer for assistance if it became necessary for him to do so.

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”⁴ but that, in the event of an “all call,” he would stay at the front gate of the campus and ensure that other security officers responded. After the hearing, the ALJ recommended to the Board that it uphold Clements's dismissal. The Board, after hearing oral argument from Clements and the DYS, adopted the recommendation of the ALJ.

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

“due process rights, as well as those rights to which he is entitled under law, including but not limited to [his rights under the ADA] and the Vocational Rehabilitation Act of 1973 were violated as a result of the conduct of [the Board]. In addition, contrary to the position of [the Board], the employment action was barred under the applicable st

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