By Jim Cline and Abagail Klonsinski
In Benton County, PERC Examiner Leonard dismissed the complaint alleging that the employer discriminated when it denied the complainant light duty. Leonard concluded that there was insubstantial evidence to support complainant’s argument that his union activity was a substantial motivating factor in placing him on light duty.
Gilmore worked as a corrections officer when he informed his employer, Benton County, of a rotator cuff injury which limited the use of his arm and hand. Upon submission of a job analysis form from Gilmore’s medical provider, Benton County placed Gilmore in light duty positions consistent with the information provided on the form. Gilmore submitted multiple forms over several months, each indicating restrictions were necessary until further notice.
Benton County later asked Gilmore to complete a Fitness for Duty form, alleging that the previously submitted forms didn’t provide enough information to appropriately accommodate him. Gilmore’s doctor completed the form, which indicated that Gilmore’s injury significantly limited his abilities and that the doctor had concerns regarding Gilmore’s assignments. Upon receipt of this form, Benton County assigned Gilmore solely to Master Control, a job within a control room where there was no anticipated physical response to incidents or physical interactions with inmates. Gilmore was told he would remain on light duty until his doctor released him. Gilmore filed a complaint, alleging his placement on light duty was in retaliation for exercising a protected union activity.
In the preliminary ruling, Gilmore’s issue was whether Benton County had retaliated against his use of a protected union activity. However, in his brief, Gilmore argued that Benton County had violated the Americans with Disabilities Act (ADA) and the Washington State Law Against Discrimination. Examiner Leonard noted that Gilmore’s arguments regarding the ADA and Washington State Law Against Discrimination were outside PERC jurisdiction.
Benton County’s reason for placing Benton on light duty was that his physical restrictions presented concerns for his safety and the safety of his coworkers and inmates. Gilmore had agreed in the hearing that his injuries could impact his abilities if he was to get into a physical alternation with an inmate.
Examiner Leonard ultimately held that Gilmore failed to prove his light duty assignment was in retaliation for exercising a protected activity. Gilmore did not provide evidence he had engaged in a protected union activity, and even if he had, Benton County presented a legitimate, nondiscriminatory reason for placing Gilmore on light duty due to his physical restrictions and the resulting safety concerns.
PERC’s jurisdiction does extend to certain types of discriminations cases — those involving retaliation for engaging in union activity. Merely being a union member doesn’t qualify. There needs to be a “nexus” between the activity and the employer action.
Denial of certain assignments, including light duty, could be the basis for a PERC discrimination charge. But there needs to be substantial evidence that the denial was due to union activity. In this case the complainant pled facts claiming union discrimination. But at the hearing, his real argument was that the employer had a duty to accommodate his injury. Filing the claim in the right forum matters. Failure to accommodate cases belong in a court, a civil rights agency, or maybe as a grievance under the contract. But not as a ULP.
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