United States District Court, D. Nevada
For Consandra Amerson, Plaintiff: Michael P. Balaban, Law Offices of Michael P. Balaban, Las Vegas, Ne.
For Clark County Department of Juvenile Services, Clark County Department of Family Services, Defendants: Robert W Freeman, Jr., LEAD ATTORNEY, LEWIS BRISBOIS BISGAARD & SMITH, Las Vegas, NV.
For Clark County, Defendant: Robert W Freeman, Jr., LEAD ATTORNEY, LEWIS BRISBOIS BISGAARD & SMITH, Las Vegas, NV; Amy V Mondragon, Richard Harris Law Firm, Las Vegas, NV.
ROGER L. HUNT, United States District Judge.
(Motion for Summary Judgment - #41)
Before the Court is Defendant Clark County's (" Clark County" ) Motion for Summary Judgment (#41, November 1, 2013). The Court has also considered Plaintiff Consandra Amerson's (" Amerson" ) Response (#44, December 16, 2013), and Clark County's Reply. (#53, December 31, 2013). For the reasons discussed below, the Court grants the motion.
1. Factual Background
This case arises out of alleged disability discrimination. In 1997, Amerson was hired by Clark County as Juvenile Probation Officer. In June 2007, during a training course, Amerson suffered an on-the-job accidental injury to her cervical and lumbar spinal areas. In January 2008, Amerson underwent spinal reconstruction surgery. Amerson's physician imposed restrictions on her work prescribing only light duty work, no repetitive back or neck motions, and no lifting of weight greater than 20 pounds. Additionally, Amerson's physician determined that she would be unable to work as a Juvenile Probation Officer in the foreseeable future due to the restrictions.
In May 2008, Amerson received a letter from Clark County indicating that pursuant to county policy, if Amerson could not return to work as a Juvenile Probation Officer in full duty capacity by June 19, the county would institute medical separation proceedings. Once Clark County was apprised of Amerson's restrictions by her physician, Clark County offered Amerson a lateral transfer to the Department of Family Services. However, Clark County removed Amerson from the position one week later because one of the essential duties of the position in the Department of Family Services position was a restricted activity Amerson could not perform.
In July 2008, Clark County began the medical separation procedures, which required a 30-day search for an alternative position for which Amerson would be qualified. After the 30-day search yielded no alternative positions, Clark County scheduled a medical separation pre-termination hearing (" Step I" ). During the Step I hearing, Amerson was told she might be eligible for Public Employees' Retirement System (" PERS" ) disability retirement. Once she determined she was approved for PERS disability retirement, Clark County told Amerson that she would need to send a letter to Clark County indicating her intent to pursue medical retirement so that
medical separation would no longer be necessary. Additionally, Amerson was told that she could pursue an Americans with Disabilities Act (" ADA" ) accommodation by contacting the Clark County Office of Diversity. Amerson failed to do either and accordingly, Clark County scheduled another Step I hearing.
Before the second Step I hearing, Amerson met with the Office of Diversity and expressed her desire to continue working with accommodations. The Office of Diversity determined Amerson had a disability under the ADA, but could not perform the duties of Juvenile Probation Officer with or without accommodation. Thus, the Office of Diversity recommended medical separation. Another 30-day search for an alternative position for which Amerson would be qualified took place. However, there was no vacant position for which Amerson qualified. Ultimately, Amerson was medically separated.
Amerson instituted a grievance against the medical separation (" Step II" ). During the Step II hearing, Amerson was told that three vacant positions had been identified, but that she did not qualify for the positions because they required defensive tactics, which was in violation of her restrictions. As Amerson did not qualify for the vacant positions, the Step II grievance was denied. However, as Amerson's restrictions prevented her from returning to her position as a Juvenile Probation Officer, and Clark County did not have a position for which she qualified, Amerson was eligible for vocational rehabilitation services under the Nevada Vocational Rehabilitation statutes. Clark County offered Amerson vocational rehabilitation but Amerson refused to sign the vocational rehabilitation program agreement because she did not have time to review it prior to signing. Her failure to sign the program agreement caused Clark County to terminate her vocational rehabilitation services. Amerson appealed the termination of vocational rehabilitation services. Eventually, Clark County settled Amerson's termination appeal pursuant to a Stipulated Settlement and Order (" Vocational Rehabilitation Settlement" ), whereby Amerson would receive $13,000.00 as a lump-sum vocational rehabilitation buy-out in exchange for dismissing her appeal.
The Vocational Rehabilitation Settlement provided that: " the disputed issues and contested matters involved in [the] appeal [would] be settled and resolved," Amerson had been employed by Clark County as a Juvenile Probation Officer, Amerson " sustained an industrial injury by accident" while on the job, Amerson " was found to have permanent restrictions . . . and vocational rehabilitation maintenance benefits were instituted," " her restrictions could not be accommodate (sic) by her employer, and that [Amerson] was placed in vocational rehabilitation." Additionally, the Vocational Rehabilitation Settlement stated that Amerson wished to elect a lump-sum buyout " rather than proceed with vocational rehabilitation services," Amerson acknowledged receipt of the buyout was " to obtain or develop a job within her physical restrictions," Clark County would pay Amerson $13,000.00 to buyout her claim to vocational rehabilitation services, the agreement was to settle facts particular to the appeal, and the appeal would be dismissed with prejudice. Clark County and Amerson, ...