United States District Court, M.D. Florida, Tampa Division
NANCY KING, THE OCCUPATIONAL HEALTH CENTER, INC., and WORK LOSS MANAGEMENT, INC., Plaintiffs,
BOARD OF COUNTY COMMISSIONERS, POLK COUNTY, FLORIDA, KANDIS BAKER-BUFORD, individually, LEA ANN THOMAS, individually, and JIM FREEMAN, individually, Defendants.
VIRGINIA M. HERNANDEZ, COVINGTON UNITED STATES DISTRICT JUDGE
matter comes before the Court pursuant to Defendants Board of
County Commissioners, Polk County, Florida's Motion for
Summary Judgment (Doc. # 106), Jim Freeman's Motion for
Summary Judgment (Doc. # 103), Kandis Baker-Buford's
Motion for Summary Judgment (Doc. # 105), and Lea Ann
Thomas's Motion for Summary Judgment (Doc. # 104).
Plaintiffs Dr. Nancy King, the Occupational Health Center,
Inc., and Work Loss Management, Inc., filed responses on
November 6 and 7, 2017. (Doc. ## 117-119, 122). Defendants
replied on November 20, 2017. (Doc. ## 130-133). For the
reasons that follow, the Motions are granted to the extent
judgment is entered for Defendants on the First Amendment
retaliation claims and the remaining state law claims are
dismissed without prejudice.
The Saga of Mr. J
facts are these. King worked as the occupational health
director for Polk County, Florida, from October 2000, to
March 31, 2016. (King Aff. Doc. # 116-4 at ¶¶ 3,
67). Plaintiff entities, The Occupational Health Center,
Inc., and Work Loss Management, Inc., are two companies owned
and operated by King, with drug testing done through Work
Loss Management and physicals done through Occupational
Health Center. (King Dep. Doc. # 100 at 7:7-19, 16:4-14).
Although these entities provided, and were paid for, services
to the County, the contract at issue was between only King
and the County. (Id. at 21:9-22:5; Craig Aff. Doc. #
112 at 11, ¶ 6).
occupational health director, King, among other things,
“was tasked with examining both applicants and
incumbents of Fire Rescue Services and rendering an opinion
as to whether these individuals were medically qualified or
not medically qualified to perform the essential functions of
their positions.” (King Aff. Doc. # 116-4 at ¶ 5).
In making these determinations, King utilized the
“nationally recognized medical standard known as NFPA
 1582, ” which “provides information for
physicians and other health care providers responsible for
fire department occupational medical programs.”
(Id. at ¶¶ 5-6). Although a Florida
Statute mentions NFPA 1582 as a standard that may be used in
determining whether a firefighter is physically fit, it is
not required and the County never formally adopted NFPA 1582
as a mandatory requirement. (Id.; Freeman Dep. Doc.
# 85 at 71:15-72:23).
would provide her recommendation to one of two employees of
the County's Risk Management Department, the director
Mike Kushner or the Employee Health Services clinic's
manager Diane Mulloney. (King Dep. Doc. # 100 at 20:16-25,
24:4-25:20). After King made her recommendation, Risk
Management passed it along to HR and the County then decided
whether or not to hire the applicant. (Id. at
24:11-25:3). The County was free to reject King's
recommendation and hire an applicant, even if King did not
recommend the applicant as medically cleared. (Id.
and her employees were not the only ones working in the
County's Employee Health Services clinic. Wellness
services for County employees, such as treatment for colds or
other acute illnesses, were provided by Dr. Aguilera and his
staff, including nurses and physician assistants. (Aguilera
Dep. Doc. # 84 at 8:14-9:18). But Dr. Aguilera or the nurses
at the Employee Health Services clinic also performed some of
the pre-employment physicals. (Id. at 12:1-15;
Mulloney Dep. Doc. # 96 at 23:10-24:4).
December of 2013, a physician assistant employed by King,
Kelly Manion, performed a pre-employment fitness exam on a
man who was about to begin training to be a Polk County
firefighter - a man whom the Court will refer to as Mr. J.
During that examination, Manion noticed that Mr. J, who is
African-American, “had a very abnormal pulmonary
function test” and an abnormal chest X-ray of his
lungs, which prevented her from completing the examination.
(Manion Dep. Doc. # 91 at 26:9-28:12).
Manion informed Mr. J and entered into her notes that
“Candidate will need medical clearance from his
personal physician and in the interim is not medically
qualified for entrance into the firefighter academy.”
(Id. at 28:13-31:17, 74). Mr. J would be expected to
send the results of the further testing with his personal
physician back to Employee Health Services so that King could
make the final pre-employment clearance determination.
(Id. at 29:12-30:7). But, Mr. J was under the
impression that he only needed to get clearance from his
personal physician or a pulmonologist. (Mr. J Dep. Doc. # 92
December of 2013 or early January of 2014, Baker-Buford, the
Equal Opportunity Administrator who subsequently became Human
Resources Director, called Mulloney and asked whether Risk
Management would permit Mr. J to begin classroom training
pending final medical clearance. (Mulloney Dep. Doc. # 96 at
45:2-47:7, 113-14). Mulloney gave permission for Mr. J to
begin classroom training, and discussed having Mr. J sign a
letter acknowledging that he must be medically cleared before
he could be hired as a firefighter. (Id.). Although
she testified that other employees have been provisionally
hired pending medical clearance in the past, Mulloney did not
realize that Mr. J would become a County employee by
attending classroom training. (Id. at 47:6-49:7).
Regardless, in the County's eyes, Mr. J became a County
employee when he was cleared by Risk Management to
participate in classroom training. (Freeman Dep. Doc. # 85 at
the confusion about Mr. J's pre-employment clearance
arose because Mr. J participated in a special County
diversity program, the Proactive Diversity Recruitment and
Training Program (PDRTP), which put firefighter and EMT
trainees on the County's payroll. (Baker-Buford Aff. Doc.
# 109 at ¶¶ 10, 16-17). Ordinarily, trainees are
not employees - only after a trainee successfully completes
the firefighter or EMT training program is he hired by the
County. (Id. at ¶ 16). Because trainees are not
usually employees, they ordinarily do not need to complete
the County's pre-employment fitness exam before beginning
diversity program changed this dynamic for its six yearly
participants because it sought to increase the number of
diverse firefighters and EMTs in Polk County. (Baker-Buford
Aff. Doc. # 109 at ¶ 12; Mathis Aff. Doc. # 111 at
¶¶ 5-6, 10). In this context, “diverse”
had a wide definition - anyone, regardless of gender or race,
was eligible for the program so long as they have resided in
Polk County for at least six months and are
“economically disadvantaged, as defined by the HUD
guidelines.” (Baker-Buford Aff. Doc. # 109 at ¶
12). The program's solution was to hire the selected
applicants as County employees for the entirety of their
training, and have the County cover the training expenses.
(Id. at ¶¶ 15-16). The Equal Opportunity
Center (EOC), within the Equity and Human Resources
Department, was in charge of recruiting and hiring the
diversity program participants, whereas Risk Management,
under which Employee Health Services fell, was the department
involved in providing medical clearance for new employees to
HR before they were hired. (Id. at ¶¶ 3,
6, 9, 16; Mulloney Dep. Doc. # 96 at 15:17-18:7).
to her conversation with Mulloney, Baker-Buford wrote Mr. J a
letter, which she had Mr. J sign on January 10, 2014. (Mr. J
Dep. Doc. # 92 at 97; Baker-Buford Aff. Doc. # 109 at ¶
17). The letter stated that Mr. J had to meet the
requirements imposed by Employee Health Services and that his
“continued employment is based on a successful medical
clearance.” (Mr. J Dep. Doc. # 92 at 97). Later, on
April 18, 2014, Baker-Buford called Mulloney and informed her
that Baker-Buford had given Mr. J a May 1, 2014, deadline to
get medical clearance. (Id. at 101; Mulloney Dep.
Doc. # 96 at 52:19-53:11, 115).
April of 2014, Mr. J went to a pulmonologist, Dr. Shah.
(Manion Dep. Doc. # 91 at 79). On April 23, 2014, Dr. Shah
wrote a letter stating that he was treating Mr. J for a rare
type of pneumonia and stated that Mr. J was “cleared to
join Polk County fire [rescue], with the limitations that he
may not do any major physical activity.” (Manion Dep.
Doc. # 91 at 79). Dr. Shah further stated that Mr. J would
“be re-evaluated in 2-3 months to reassess his
whatever reason, King was not provided a copy of this
clearance and would not become involved in reviewing Mr.
J's records for months to come. (King Dep. Doc. # 100 at
38:7-39:11). Dr. Aguilera, however, was provided the letter
and determined that Mr. J was not medically qualified to be a
firefighter on April 29, 2014. (Mulloney Dep. Doc. # 96 at
14, 2014, a nurse practitioner, Nurse Albano, wrote a letter
stating that Mr. J was under her care and was “cleared
to attend EMT classes and ride [alongs]” but would need
clearance from a pulmonologist for physical training or
exercises. (Manion Dep. Doc. # 91 at 80). A few days later,
on May 20, 2014, Nurse Albano wrote a letter
“releas[ing] [Mr. J] to perform all duties as an EMT
trainee.” (Id. at 81). Someone from the EOC
office sent Nurse Albano's letter to Mulloney at the
Employee Health Services clinic. (King Dep. Doc. # 100 at
277). Still, Mulloney did not recall receiving this clearance
letter. (Mulloney Dep. Doc. # 96 at 57:23-58:18). A few days
later, on June 3, 2014, Nurse Albano wrote a letter
clarifying that a pulmonologist must clear Mr. J for physical
training. (Id. at 122; Albano Dep. Doc. # 88 at
then went to see another pulmonologist, Dr. Ackerman, in
August of 2014. Dr. Ackerman stated that Mr. J was
“cleared for work (firefighter school) but will have
another [pulmonary function test] and ct [scan] done in 3
[months].” (King Dep. Doc. # 100 at 280). After Dr.
Ackerman's findings, on October 14, 2014, Nurse Albano
filled out an official form titled “Medical Examination
to Determine Fitness for Firefighter Training, Bureau of Fire
Standards and Training, ” giving Mr. J full clearance
to engage in firefighter training. (Albano Dep. Doc. # 88 at
37:1-40:23, 132). But someone from the Employee Health
Services clinic contacted Nurse Albano and, on November 18,
2014, Nurse Albano rescinded the clearance she had given Mr.
J the previous month. (Mulloney Dep. Doc. # 96 at 62:18-67:9,
Mr. J had continued his treatment with Dr. Ackerman. And Dr.
Ackerman, after monitoring Mr. J's condition and
performing additional tests, issued another clearance for Mr.
J on November 24, 2014. (King Dep. Doc. # 100 at 286;
Mulloney Dep. Doc. # 96 at 130). That letter states:
“After the physical evaluation of [Mr.] J's health
and reviewing the job description for Firefighter, [Mr.] J is
released to perform all duties as a Firefighter.”
(Id.). As Dr. Ackerman continued treating Mr. J, he
sent further letters clearing Mr. J in February and March of
2015. (Mulloney Dep. Doc. # 96 at 137, 139).
November of 2014, the then-director of Risk Management, Mike
Kushner, became involved after Mulloney explained Mr. J's
situation to him. (Mulloney Dep. Doc. # 96 at 69:19-25). He
emailed Mulloney and King asking them to prepare “a
detailed chronology with medical records and notes of [their]
conversations with HR” and stating that he needed
“to discuss the pre placement physical examination
process with [Baker-Buford].” (King. Dep. Doc. # 100 at
309). Kushner emphasized that Employee Health Services should
maintain control throughout the medical clearance process.
(Id.; Kushner Dep. Doc. # 89 at 17:6-19:9). He
insisted that candidates for employment should send their
medical records directly to Employee Health Services, rather
than to the EOC, and that HR should not hire a candidate
until medical clearance is received from Employee Health.
(King. Dep. Doc. # 100 at 309).
asked King to make a fitness for duty determination for Mr. J
based on his records but King explained that she needed to
see him personally to make that determination. (King Dep.
Doc. # 100 at 338). On November 14, 2014, King called
Baker-Buford to notify her that King would be performing a
fitness for duty evaluation for Mr. J. (Id.).
Baker-Buford refused, stating that “it would be
inappropriate for [King] to see Mr. J as he had already
received medical clearance from his treating physician and
that he would not be [undergoing] any further evaluation by
[King].” (Id.). King was
“dumbfounded” by Baker-Buford's refusal
because “[i]n fifteen years, the County had never
prevented [King] from performing [her] job
responsibilities.” (King Aff. Doc. # 116-4 at ¶
that, in a December 1, 2014 email, Kushner asked King to
“review the medical records regarding Mr. J and render
an opinion on whether or not he may perform the duties of a
firefighter” and to provide her “medical opinion
as to whether Mr. J completed his physical intake
questionnaire accurately given the medical history he
provided” to other providers. (King Dep. Doc. # 100 at
310). King had never before been “asked to review an
applicant's medical records for potentially false
information.” (King Aff. Doc. # 116-4 at ¶ 16).
Still, King acknowledged that she needed to have “a
comfort level” with the accuracy of an applicant's
medical history to make her fitness for duty determinations
and that an inaccurate history is “certainly something
[she] take[s] into consideration.” (King Dep. Doc. #
100 at 129:24-130:9). King also stated that, if she
discovered inconsistencies or falsification of medical
records while making a fitness for duty determination for
another applicant, she “would certainly notify the
employer.” (Id. at 130:18-25).
December 10, 2014, King completed her records review and told
Kushner that a different occupational health specialist or
pulmonologist should give a second opinion, “given the
contentious nature of this case.” (King Dep. Doc. # 100
at 338). King noted “multiple inconsistencies reported
to various medical providers by [Mr.] J, specifically false
information regarding past pulmonary conditions.” (King
Aff. Doc. # 116-4 at ¶ 18).
then told Baker-Buford that he wanted a second opinion from
another pulmonologist, Dr. McCluskey, about Mr. J. (King Dep.
Doc. # 100 at 291). Baker-Buford wrote back that she was
“fine with it, if [the County had] done so with other
employees” but was concerned because Mr. J had already
gone to a pulmonologist and been cleared, so the County
“shouldn't keep making him jump through
hoops.” (Id.). After the appointment with Dr.
McCluskey was scheduled by Risk Management, Baker-Buford
emailed Mulloney asking to reschedule the appointment so that
Mr. J would not have to miss class, as trainees are only
allowed to miss three days of class total. (King Aff. Doc. #
116-4 at ¶ 27; Baker-Buford Aff. Doc. # 109 at ¶
19). The appointment was rescheduled for February 6.
(Baker-Buford Aff. Doc. # 109 at ¶ 19).
February of 2015, County Manager Freeman and Deputy County
Manager Thomas had a meeting with Kushner and Baker-Buford
about the confusion regarding the medical clearance process
raised by Mr. J's situation. (Freeman Aff. Doc. # 107 at
¶ 8). Freeman learned that Mr. J had been an employee
for over a year, had medical clearance to enter the EMT
training program, and had some clearances from outside
medical providers, but had never been cleared by King.
(Id.). Kushner and Baker-Buford explained their
disagreement about the medical clearance process - i.e.
whether an outside specialist's clearance is sufficient
and whether an individual should be able to choose which
specialist he sees if King decided a second opinion was
needed. (Id.; Freeman Dep. Doc. # 85 at 88:4-91:13;
Kushner Dep. Doc. # 89 at 18:8-20:3). Freeman was frustrated
that the issue was being brought to him a year later and
“directed [Kushner] and [Baker-Buford] to work together
and propose a better practice for both of their departments
to follow, so that this situation would not repeat
itself.” (Freeman Aff. Doc. # 107 at ¶ 8; Freeman
Dep. Doc. # 85 at 89:11-90:14).
and Baker-Buford continued to disagree over whether an
outside physician or specialist's fitness determination
was sufficient to medically clear a candidate for employment.
In a March 2, 2015 email, Kushner emphasized that King had
discretion in choosing the specialist to which a candidate
was referred for further testing, rather than letting the
candidate choose from a panel of options. (King Dep. Doc. #
100 at 312). Even if the candidate's personal physician
or the specialist to whom King referred him disagreed,
Kushner insisted King or another examining physician for
Employee Health Services should make the final
“determin[ation] whether or not the candidate or
employee may perform the essential functions of the job with
or without restrictions.” (Id.).
response, Baker-Buford stated that she knew King did not
currently give employees or job candidates a panel of three
specialists to choose from, if King required a second opinion
because of a disagreement with the candidate's personal
physician or specialist. (King Aff. Doc. # 116-4 at 76).
Rather, Baker-Buford asked Kushner to have King
“implement [those] changes to the process, ”
which Kushner did not do. (Id.). Furthermore,
Baker-Buford told Kushner that “County
Management” notified her that “once the employee
is cleared by his/her [personal care physician] or
specialist, that is it” and the employee would not be
seen by “any other physician at the County's
expense, ” and the County would hire the applicant.
(Id. at 76, ¶ 31). Kushner responded that he
disagreed with the County “hir[ing] an employee based
upon the recommendation of a personal physician rather than
the county's assigned occupational medicine doctor”
and that the County management was “making an error in
judgment.” (Id. at 75).
this time, in the middle of March, King was told by Dr.
McCluskey that the February appointment with Mr. J had been
cancelled by a woman who referred to Mr. J as “her
client, ” leading Dr. McCluskey to believe Mr. J was
represented by an attorney. (King Aff. Doc. # 116-4 at ¶
39). With Risk Management's help, King did a public
records search to determine who called Dr. McCluskey.
(Id.). The search revealed that Dr. McCluskey had
been called by Sharon Mathis's office phone - Mathis is
an employee of Baker-Buford in the County's EOC.
(Id.). King “[found] it very unusual that
someone from the County would be calling on behalf of an
employee to make determinations about whether or not he's
going to be at an appointment or not” and another
example of the high involvement the EOC and HR departments
had displayed in Mr. J's case. (King Dep. Doc. # 100 at
Mathis later explained to Freeman and testified in her
deposition, she had not cancelled Mr. J's appointment at
all, nor had she represented herself to Dr. McCluskey as Mr.
J's attorney. (Mathis Aff. Doc. # 111 at ¶¶
20-21; Freeman Aff. Doc. # 107 at ¶¶ 13-14).
Rather, Mathis had called Mr. J to remind him of the
appointment scheduled for the next day, but was told by Mr. J
that he was in the hospital with food poisoning. (Mathis Aff.
Doc. # 111 at ¶ 18). In order to give Mr. J a telephone
number so he could rearrange the appointment, Mathis searched
the internet for Dr. McCluskey's office number.
(Id. at ¶¶ 19, 22). Apparently Dr.
McCluskey had changed offices numerous times and different
telephone numbers were listed for him. (Id. at
¶ 19). Mathis called various incorrect numbers for Dr.
McCluskey's office, and, after eventually reaching Dr.
McCluskey himself, told him only that she “was calling
on behalf of Mr. J and was confirming Dr. McCluskey's
number.” (Id.). Freeman “concluded that
[Mathis] had not represented herself as Mr. J's attorney
and that the records corroborated her story.” (Freeman
Aff. Doc. # 107 at ¶ 14).
March 12, 2015, just two days after Mr. J's pulmonologist
Dr. Ackerman issued another clearance for Mr. J, King faxed
Dr. Ackerman a letter “outlining [her] position with
the [County] as well as [her] concerns regarding [Mr.
J]” and “inform[ing] him of the NFPA 1582 medical
guidelines for physicians evaluating firefighters.”
(King Dep. Doc. # 100 at 339). Dr. Ackerman called King that
day, admitted that he was unaware of the NFPA 1582
guidelines, and “concurred immediately that Mr. J did
not meet” those guidelines. (Id.). But Dr.
Ackerman did not issue a revocation of his previous clearance
at that time. The next day, King sent a certified letter to
Mr. J “apprising him of [her] conversation with Dr.
Ackerman and advising him that it was [her] medical
determination that he was not qualified to perform the
essential functions of the job of a firefighter.”
her conversation with Dr. Ackerman, King emailed Baker-Buford
to tell her about Dr. Ackerman's change in opinion and
that Dr. Ackerman “would provide a final recommendation
regarding [Mr. J]” soon. (Id. at 316).
Baker-Buford responded that it was important for King to
treat Mr. J the same as other employees and that the County
should not subject him “to additional requirements or
barriers.” (Id.). Baker-Buford attached a copy
of Dr. Ackerman's March 10, 2015 clearance letter - the
last written opinion of Dr. Ackerman's on file.
(Id.). King was “once again astonished”
and “shocked” by Baker-Buford's conduct,
specifically her possession of “an employee's
medical records, circumventing the Employee Health
Services” and her “question[ing] [King's]
consistency of treatment and fairness when [Baker-Buford]
herself had stepped outside the boundaries of her duties on
multiple occasions.” (King Aff. Doc. # 116-4 at ¶
38). King “notified  Kushner of  Baker-Buford's
email and [her] frustration with what [King] perceived was
gross interference with [her] job responsibilities.”
March 31, 2015, King had a meeting with Thomas. During the
meeting, King communicated her public safety concerns
regarding Mr. J potentially working as a firefighter, as well
as her concern that “the County could face exposure for
possible ‘reverse' discrimination [lawsuits] given
the favoritism afforded to [Mr.] J and  Baker-Buford's
unprecedented involvement in the medical clearance
process.” (Id. at ¶ 40). King “also
reported to  Thomas that Dr. McCluskey received a call from
 Mathis' desk during which the caller indicated that
[Mr.] J was her client.” (Id.).
King sent a follow-up letter to Dr. Ackerman on April 1,
2015, to which she attached an official medical clearance
form for Dr. Ackerman's signature. (King Dep. Doc. # 100
at 339). Dr. Ackerman signed the form the next day, noting
that Mr. J was not medically qualified for firefighter
training. (Id.; Mulloney Dep. Doc. # 96 at 141).
King sent the form to Mulloney and had Mulloney forward it to
the firefighter academy. (Mulloney Dep. Doc. # 96 at
142-143). Mr. J was dismissed from firefighter training on
April 6, 2015, as a result. (King Aff. Doc. # 116-4 at ¶
he had been removed from firefighter training, King was asked
her opinion “as to whether or not [Mr.] J could work as
an EMT without firefighting responsibilities” on April
21, 2015. (King Aff. Doc. # 116-4 at ¶ 44). King
determined that an outside physician, Dr. Gupta, should make
that determination, given the contentiousness of the
situation. (Id.). Mr. J had his appointment with Dr.
Gupta on June 24, 2015. (Id. at ¶ 46). Based on
Mr. J's results, Dr. Gupta recommended that Mr. J
“complete a physical agility test with a pulse oximeter
in place” before a final fitness determination be made.
25, 2015, King provided a letter to Kushner outlining her
recommendation that Mr. J undergo the physical agility test
again. (King Dep. Doc. # 100 at 324, 341). She also conveyed
her “concerns regarding his credibility as a patient
and ability to provide a truthful account of his current
medical condition and symptoms, ” based on additional
inconsistencies with the medical history Mr. J reported to
Dr. Gupta. (Id.). She wrote:
If it is the determination of County officials that in spite
of multiple self-reported medical history inconsistencies as
well as untruthful information provided to . . . Dr. Gupta,
they wish to continue with further testing, then it is my
recommendation to proceed with the requirements set forth in
Dr. Gupta's addendum.
(Id. at 324). She concluded that she was
“unable to provide medical clearance without this
additional testing, therefore, the patient continues to
remain medically unqualified for this position pending
successful completion of same.” (Id.).
after issuing her letter, King was contacted by another
Deputy County Manager, Gary Hester, who told her “that
under no circumstances was the County going to require any
additional testing of [Mr.] J” and that she “was
putting the County at risk for a disability action by [Mr.]
J.” (Id. at 341; King Aff. Doc. # 116-4 at
¶ 49). King felt that Hester “was trying to
intimidate [her]” and became hostile when she
“refused to acquiesce.” (King Aff. Doc. # 116-4
at ¶ 49).
ultimately decided to place Mr. J in a non-firefighter EMT
position with the County. (Freeman Aff. Doc. # 107 at ¶
10). At this time, Mr. J was already a state and nationally
certified EMT, and had “been medically cleared to enter
the Polk State College EMT program.” (Hester Aff. Doc.
# 110 at ¶ 7; Freeman Aff. Doc. # 107 at ¶ 10).
Hester had spoken with “the training academy director,
who confirmed  that Mr. J was fully capable of performing
the job duties and requirements of an EMT, and that he had
witnessed him successfully perform strenuous tasks during his
fire training.” (Hester Aff. Doc. # 110 at ¶ 7).
Hester also related to Freeman that EMTs are never required
to take the physical agility test with a pulse oximeter on
their finger, as suggested by Dr. Gupta, and that such test
likely could not even be taken while wearing a pulse
oximeter. (Id. at ¶ 6; Freeman Aff. Doc. # 107
at ¶ 11). Hester and the County's labor attorney
were also concerned about requiring Mr. J to retake the
physical agility test because they “had never required
any candidate to retake a test that had been previously
passed.” (Hester Aff. Doc. # 110 at ¶ 5).
to Freeman, the irregularities with Mr. J's
medical-clearance and records were not his sole concern in
deciding whether Mr. J should work as an EMT. The County
Attorney and County's outside labor lawyer had advised
Freeman that Mr. J, as a County employee, was entitled to a
reasonable accommodation under the Americans with
Disabilities Act. (Freeman Aff. Doc. # 107 at ¶¶
9-12; King Dep. Doc. # 100 at 151:23-153:8). Essentially,
although Mr. J had never been approved for employment by
King, Mr. J had been an employee for almost a year and was
owed all the privileges and protections enjoyed by other
County employees, including reasonable accommodations. (Craig
Aff. Doc. ...