Filed: April 13, 2004
State of Louisiana
Civil Service Commission
Rasse Brown works for the Department of Administration (“DOA”), Louisiana Property Assistance (“LPA)” as a Mobile Equipment Operator 1/Heavy and is serving with permanent status. On June 23, 2003, Mr. Brown filed a notice of appeal wherein he complains that DOA violated Civil Service Rule 11.13.1 by placing him on forced sick leave. Mr. Brown requests that all sick leave that he was forced to take be re-credited to him.
I held a public hearing on July 30, 2003, in Baton Rouge, Louisiana. Based on evidence presented, the record, and pursuant to the provisions of Article X, Section 12(A) of the Louisiana Constitution of 1974, as amended in 1982, I make the following findings.
1.Mr. Brown works as a Mobile Equipment Operator 1/Heavy in Louisiana Property Assistance at the Baton Rouge Brickyard Lane location. Jack Bowden, Tyrone Dunklin, and Mr. Reginald Grant work at the same place and are Mobile Equipment Operators 1/Heavy.
2.Twenty-five percent of the duties of a Mobile Equipment Operator 1/Heavy entail driving tractor-trailer and box trucks statewide. An Operator 1/Heavy is required to have a commercial drivers license for this statewide driving. Thirty-five percent of the duties entail loading the surplus items at the point of pickup and returning to Baton Rouge with the items, unloading the items at the warehouse, checking each item, and moving the items to the proper warehouse location.
3.Three percent of an Operator 1/Heavy’s duties are delivering surplus property to the auction site on N. 17th Street in Baton Rouge. Auctions take place once a month.
4.Jason Ballard works as a Mobile Equipment Operator 1 at the LPA warehouse. Mr. Ballard has some truck driving duties but he is not primarily a truck driver. Mr. Ballard operates the forklift, mows the grass, and occasionally drives the box truck to pick up surplus property items.
5.State surplus property includes, among other things, desks, chairs, filing cabinets, computers, and computer monitors, sports equipment, and refrigerators. Some of these items weigh more than 25 pounds. For loading, unloading, and moving items, an Operator 1/Heavy has to shove, shift, and/or lift the items. A dolly and forklift are available for use in the warehouse. When a dolly is used, the items have to be physically moved onto the dolly. When moving heavy items, such as a desk or refrigerator, one end of the item is picked up and the dolly is positioned under it and the item is lowered down onto the dolly. When a forklift is used, items have to be physically shoved, shifted, and lifted onto the forklift. At times forklift pallets are used. The pallets are three to four inches off the ground and items have to be lifted onto the pallets.
6.From time to time, laborers or Louisiana Department of Corrections inmates assist with lifting and positioning the surplus property in the Baton Rouge area, but help is not always available.
7.On September 28, 2000, Mr. Brown was involved in an on-the-job accident and suffered fractures in both legs. Mr. Brown was off work on sick leave for two months and thereafter, Mr. Brown went on Family Medical Leave and received worker’s compensation. Dr. Hatzis is his treating physician.
8.On October 25, 2000, LPA received a List of Essential Duties of Employee’s Position form signed by Dr. Hatzis saying that Mr. Brown could not load and unload trucks, drive tractor/trailer trucks statewide, pick up equipment, operate forklifts, or inspect trucks.
9.Mr. Brown remained off from work until May 2001. When he returned to work Mr. Brown’s work hours were restricted to four hours per day and the only duties he could perform were driving a truck locally, taking property to the auction site, and operating the forklift in the warehouse. He could not drive statewide, climb stairs, squat, or lift items from the floor.
10. At some point after May 2001, Mr. Brown’s work hours increased to six hours per day but he suffered a work related back injury while helping to load property onto a truck. His hours were again reduced to four hours per day.
11. On October 1, 2002, Dr. Hatzis signed a List of Essential Duties of Employee’s Position form indicating that Mr. Brown could not manually load and unload surplus property weighing as much as 25 pounds on a daily basis.
12. On October 16, 2002, Ms. Irene Babin, LPA Director, temporarily assigned Jack Bowden the duty of scheduling the assignments for the Mobile Equipment Operators 1/Heavy. Mr. Bowden also drove statewide when in his discretion he was needed. Mr. Bowden asked Mr. Brown if he could make statewide trips and Mr. Brown told him no. On one occasion Mr. Bowden needed someone to go to Hammond and asked Mr. Brown and Mr. Brown told him that he could not drive that far. Thereafter, Mr. Bowden scheduled surplus property pickups around Mr. Brown’s restricted duties.
13. On October 22, 2002, Dr. Hatzis signed a List of Essential Duties of Employee’s Position form indicating that Mr. Brown’s duties were restricted and that he could not lift, climb, stoop, or bend. At some point, Ms. Babin hired Mr. Leon Impson on a restricted appointment to perform the duties that Mr. Brown could not perform.
14. During a meeting in October 2002, Ms. Babin told Mr. Brown that he would have to return to work full time because she needed an employee who could perform all of the Mobile Equipment Operator 1/Heavy duties. Mr. Brown told Ms. Babin that he still could not drive statewide. In November 2002, Mr. Brown returned to work full time but he could not lift over 25 pounds and he could not drive statewide.
15. On February 24, 2003, Dr. Hatzis signed a Status Report saying that Mr. Brown could work full time but only if he could tolerate additional hours. Mr. Brown could not lift more than 25 pounds. In February 2003, during a meeting with Ms. Babin, Mr. Brown again advised her that he could not drive statewide.
16. From September 28, 2000, to April 2003, Ms. Babin accommodated Mr. Brown’s restricted duties by allowing him to work in the warehouse and make local and auction runs. She did not require him to drive statewide to pickup any surplus property. The duties that Mr. Brown performed were the duties of a Mobile Equipment Operator 1, not those of a Mobile Equipment Operator 1/Heavy.
17. In April 2003, based on the Doctor’s reports, Ms. Babin felt that Mr. Brown could not perform the essential duties of his position. LPA sent Mr. Brown home and he began receiving worker’s compensation.
18. On June 4, 2003, Dr. Hatzis signed a List of Essential Duties of Employee’s Position form indicating that Mr. Brown could not physically drive trucks statewide. Dr. Hatzis said that Mr. Brown could load trucks for return to LPA and store the property in the warehouse with assistance of a forklift and dolly using moderate weight.
19. On July 23, 2003, Dr. Hatzis signed a Status Report saying that Mr. Brown could work but he could not lift anything over 25 pounds from floor level. Dr. Hatzis approved Mr. Brown to work in warehouse driving a forklift.
20. In addition to suffering from the fractured legs, Mr. Brown suffers from arthritis and intermittent flare-ups of arthritic pain, and lumbar disc disease.
Civil Service Rule 11.13.1 Enforced Sick Leave provides:
appointing authority may place an employee on sick leave when the employee
asserts the need to be absent from the work place because of the employee's
illness or injury.
The Commission has repeatedly held that when an employee reports to work ready, willing, and able to perform the essential function of his job, an agency may not send the employee home on forced sick leave. See Coates v. Department of Public Safety and Corrections, Jetson Correctional Center for Youth, Docket Nos. 12719 and 13010, decided 5/19/99.
However, this is not the case of an employee claiming he could perform the essential functions of the job and an agency claiming otherwise. Mr. Brown claims that he can lift items less than 25 pounds and for the heavier items he uses “tricks of the trade” to load and unload the trucks and move the surplus property from place to place in the warehouse. To the contrary, Mr. Dunklin and Mr. Bowden testified that even using the tricks that you learn, there is daily loading and unloading trucks and lifting, shoving, tilting, and positioning items that weigh more than 25 pounds, such as desks and refrigerators. They testified that even using a dolly the item has to be tilted to get the dolly under it and a Mobile Operator 1/Heavy has to support the weight of the item while this is being accomplished.
Mr. Brown claims, and his physician confirms in several different statements, that Mr. Brown could not drive statewide, which is twenty-five percent of his job. Although Mr. Brown’s physician cleared Mr. Brown to return to duty on a full time basis in November 2002, he did not lift the restrictions he had previously placed on Mr. Brown. In essence, Mr. Brown and his physician asserted that Mr. Brown had a disability that prevented him from driving performing sixty-three percent of his duties - unless LPA permanently assigned him to operate the forklift in the warehouse and/or drive a truck on the auction and local runs. Duties that are assigned to a Mobile Equipment Operator 1 not to a Operator 1/Heavy.
At the time LPA placed Mr. Brown on enforced sick leave, he could work, but he could not perform approximately sixty percent of the duties expected of a Mobile Equipment Operator 1/Heavy at LPA. Under these circumstances, an agency can place an employee on forced sick leave. An employee’s asserting a medical disability that prevents his agency from assigning him the essential functions of his job is the same as an employee’s asserting the need to be absent from work because of illness or injury. Accordingly, this appeal is denied.
L. Joann McAndrew
Civil Service Commission Referee