Ruling could hinder disabled workers | NevadaAppeal.com

Ruling could hinder disabled workers

Steve Kanigher, LAS VEGAS SUN

Fallon resident Robert Robison has a bone to pick with the U.S. Supreme Court.

The former Nevada correctional officer won a $588,754 judgment against the state in U.S. District Court in 1999 for alleged discrimination under the Americans with Disabilities Act. He won’t be able to collect, however.

Robison was stung by a high court ruling earlier this year prohibiting state employees from suing states for monetary damages in federal court under the disabilities act. His case is a textbook example of how an individual can be affected by a Supreme Court decision.

“If you are a criminal in prison, you have a right to sue the state prison that you are being held in or an officer of that prison,” Robison said. “I would like to know how nine judges made the decision that a disabled state employee cannot sue a state. Are they telling the disabled that we should not have the same rights as a criminal?”

The 1990 act, a landmark civil rights law, was hailed as a victory for disabled Americans because it was intended to make it easier for them to gain employment and access to buildings and transportation. Critics argue the law has created unnecessary red tape for business and eroded states’ rights.

Robison, 50, alleged he was fired from his job at the Lovelock Correctional Center in May 1996 because of his bad back, even though the Nevada Department of Prisons knew his condition when he was hired. Robison was hired on the recommendation of the state Bureau of Vocational Rehabilitation, which helps place qualified disabled individuals in state jobs.

State agencies now employ 42 disabled individuals through what is known as the 700-hour program, the same one used to place Robison at Lovelock. The state program has been in existence since at least the 1970s.

“Overwhelmingly, the people we place do a good job,” said Janice John, a state vocational rehabilitation supervisor in Las Vegas.

“Once they get inside state government, they are able to transfer to other opportunities. It has been a very successful program.”

Robison, who passed state agility tests, began working at Lovelock in June 1995. He received two satisfactory work evaluations, but was fired just two weeks before his one-year probationary period ended.

His attorney, Carl Hylin, of Reno, said higher-ups in the prison system feared they would have been hit with a worker’s compensation claim had Robison reinjured his back.

“A month later and he would have been a cleared employee, and it would have been harder to get rid of him,” Hylin said.

Glen Whorton, chief of classification and planning for the prison system, referred questions about the case to the attorney general’s office. The deputy attorney general who handled the state’s defense is no longer with the office.

However, court records show that the state was concerned about Robison’s ability to handle inmate fights, even though no incidents were cited as support. The state argued Robison’s back condition also would have exposed Nevada to lawsuits had he failed to restrain an inmate who injured someone else.

“The state has an interest in preventing fights and escapes and in protecting inmates, staff and the public,” the state argued. “The state has an interest in not paying large workers compensation medical bills if Robison’s back is further injured. Robison’s permanent condition seriously undermines these security and monetary interests.”

The state relied on testimony from a Salt Lake City physician who had performed fusion surgery on Robison’s back.

The physician testified he would not have recommended Robison work as a correctional officer because he could reinjure his spine. In cross-examination, the physician said there was no guarantee Robison would have hurt his back in a fight.

Robison said he knew the risks he was taking by seeking prison employment.

“I believe I could have handled any altercation,” Robison said. “I’m 6 foot, 3 inches and 230 pounds. I’m no little man.”

He and Hylin countered that Lovelock had other officers with physical limitations, including one with a prosthetic foot, another with a “game hip” that caused him ongoing problems, and women “as small as 5 feet tall, weighing 110 pounds.”

After successfully suing the state in federal court, Hylin entered settlement negotiations with the attorney general’s office. The state prepared a $550,000 settlement agreement, which Robison signed.

But the state reneged and failed to sign it. Instead, the state appealed to the 9th U.S. Circuit Court of Appeals in San Francisco.

Along came the University of Alabama v. Garrett.

Patricia Garrett, former nursing director at the university’s medical center, sued her state after she was demoted following chemotherapy treatment for breast cancer. Like Robison, she won in a lower federal court.

Alabama appealed, arguing that Congress did not have the power to override a state’s immunity from lawsuits filed in federal court by individuals. Fourteen states supported Garrett, but Nevada, through Attorney General Frankie Sue Del Papa, was one of eight states that sided with Alabama.

“We’re not saying the person can’t sue the state,” Nevada Deputy Attorney General Julie Slabaugh said. “We’re saying the federal government shouldn’t make those decisions. Federal courts should not be dictating to state agencies.

“A person can still sue the state in state court. State court should be the first recourse.”

The Supreme Court ruled in February in Alabama’s favor in a 5-4 decision that advocates for the disabled bemoaned as one of their worst-ever legal setbacks. Then in April the 9th Circuit threw out Robison’s case, citing the Garrett decision.

Private-sector employees and those who work in local government can still sue employers in federal court under the disabilities act.

That’s why excluding state employers is unfair, advocates say. One such advocate is Mary Evilsizer, Southern Nevada Center for Independent Living executive director.

“He got screwed, and it’s not right,” Evilsizer said of Robison. “Why should the states be excluded? If his employer was a corporation, he could sue for millions. His civil rights were violated.

“Altercations in prison are part of the daily function in the prison. If you hire someone with a back injury after he passed an agility test, why do you decide 11 months later that he could be severely injured?”

Advocates nationwide were so aggravated with the Garrett decision that they protested when President George Bush nominated Jeffrey Sutton, who argued Alabama’s position before the high court, for federal appellate judge.

Born in Illinois, Robison moved to Fallon in 1963. Following high school graduation he spent much of his life working as an upholsterer. He also worked briefly as a police officer in Lovelock and Carlin.

Robison injured his lower back in 1993 when he fell off a boat he was upholstering for a company in Utah. After back surgery he returned to Fallon.

Like other correctional officers, Robison was rotated through various posts in the high-medium security prison.

“With the prison job there was nothing I couldn’t really handle,” Robison said. “The job was ideal because there was not a lot of physical work.”

The only physical problem he said he encountered was when stationed at a console where he was required to use switches to operate prison doors from a seated position. After experiencing pain while leaning forward he asked the prison for modifications to his work station.

The Bureau of Vocational Rehabilitation offered to pay for the modifications, such as a different chair and mirrors that would have enabled Robison to observe his area without bending forward. The prison department declined and fired him shortly thereafter.

Terrance Dinneen, a Reno rehabilitation counselor who evaluated Robison, said in a report that the prison system broke state and federal laws by failing to accommodate the correctional officer.

“The accommodation could have been accomplished at no cost to the employer through the Bureau of Vocational Rehabilitation, (which) offered to pay for any assistive devices,” Dinneen wrote. “No investigation was taken in adaptive equipment to accommodate Mr. Robison’s ability to perform the job.”

The firing left Robison and his wife destitute.

“At that point I was borrowing money from family members,” he said.

Making matters worse is that Robison can no longer sue the prison system in state court because the statute of limitations ran out in1997, his attorney said.

Hylin said he assumed federal court had the proper jurisdiction because Robison’s case involved the federal disabilities act. But Hylin also said the Supreme Court over the past 30 years has gradually moved in the direction of states’ rights over civil rights.

“The court is turning back the clock on Congress’ ability to enforce legislation against state government,” Hylin said.

For Robison, who remains unemployed and relies on Social Security disability insurance, the Garrett case proved to be an unexpected blow.

“I knew that case was coming up, but I didn’t have any inclination that they would rule that way,” Robison said. “They’ve turned the ADA over to the states so that they can make up their own minds about it. As far as I know this is a done deal unless the Supreme Court overthrows its own decision.”