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Portage Cty. deputy was not discriminated against for sleep apnea
TRACEY BLAIR
Legal News Reporter
Published: August 3, 2018
A Portage County sheriff’s deputy who argued he was discriminated against for having sleep apnea should not get his job back, the 11th District Court of Appeals recently ruled.
Michael J. Muldowney appealed a common pleas judge’s order finding his claims for disability discrimination and retaliatory discharge were barred by collateral estoppel because an arbitrator previously found he was terminated for just cause.
Court records show Muldowney began working with the department in September 2000. In 2009, he mainly worked first-shift courthouse security, and later was assigned third shift for road-patrol training.
The appellant told superiors working third shift may be difficult for him due to his medical condition, but was told the sheriff’s policy required all deputies to be road-certified.
After starting third-shift training, his field training officer noted problems in his driving, such as being unfamiliar with county roads and landmarks; poor map-reading skills; a lack of knowledge of county geographical lines and a poor sense of direction. In addition, Muldowney was unable to determine the shortest route possible between two points, failed to notice street signs indicating county lines and would fail to stop before turning right on red.
In January 2010, the appellant’s treating physician, Dr. Stephen Crowe, sent Sheriff David Doak a letter stating Muldowney had been diagnosed with obstructive sleep apena and shift work disorder, advising that it may be best if his patient work first or second shift until medications and a Continuous Positive Airway Pressure machine began to give him some relief in the coming weeks.
The following week, Coak sent a letter to Dr. Joel Steinberg, stating an appointment had been made for Muldowney to undergo an independent medical exam due to recent “insubordinate” and “erratic” behavior.
After the evaluation, Steinberg recommended the appellant see a neurologist due to concerns he might be developing dementia.
Meanwhile, in March 2010, Weiss wrote the sheriff that Muldowney was fit for duty, but could not work the third shift from midnight to 8 a.m. . Muldowney was then scheduled to work the 8 p.m. to 4 a.m. shift, and the sheriff requested further medical documentation .
The following month, Doak ordered Muldowney to complete his road certification training by May 10, 2010. Muldowney was soon notified of a pending disciplinary action that could result in his termination.
Weiss contacted the sheriff’s office and provided written notice that Muldowney would be unable to return to work two more months pending further testing and evaluation per the Family Medical Leave Act.
The sheriff’s office agreed to accommodate the deputy by keeping his position open until his return to active duty, by allowing him to complete his road certification on first shift and then assign him first shift as a deputy sheriff.
However, on June 21, 2010, Doak formally notified appellant he was terminated due to the allegations in the April disciplinary action notice.
The arbitrator found there was just cause for the termination because Muldowney was incompetent in essential duties that could affect the health and safety of the public.
The trial court granted summary judgment to the defendants in the deputy’s subsequent disability discrimination claim, finding the arbitrator’s ruling did not preclude the underlying statutory discrimination claims.
Muldowney argued that collateral estoppel did not bar his statutory claims, citing Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). In that case, which involved a grievance-arbitration provision in a collective bargaining agreement and racial discrimination claims, the court found the terminated employee was bound by the arbitrator’s prior decision and had no right to sue under Title VII. The 7th Appellate District Court later reversed the decision, holding that the employee’s contractual right to arbitration and statutory claim are independent of each other.
The appellate court agreed that Muldowney’s causes of actions are not barred by collateral estoppel or res judicata.
However, the majority found that because Muldowney lacked certain essential skills for the job, he was properly terminated for a nondiscriminatory reason.
“… Appellant fails to provide any argument that, even if he were permitted to work first or second shift, he could perform the necessary navigational and orientation skills required of a deputy,” 11th District Judge Cynthia Westcott Rice wrote in her 3-0 opinion.
Although evidence showed Muldowney had an impairment, there was no evidence his sleep disorder caused his deficiencies in navigation and orientation on the road, she added.
Appellate judges Thomas R. Wright and Colleen Mary O’Toole concurred.
The case is cited Muldowney v. Portage Cy., Ohio Board of Cty. Commissioners, 2018-Ohio-2579.