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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 580 September Term, 2004

DONALD RIDGELY v. MONTGOMERY COUNTY, MARYLAND

Hollander, Eyler, Deborah S., Barbera, JJ. Opinion by Eyler, Deborah S., J.

Filed: September 15, 2005

The

Circuit favor

Court of

for

Montgomery

County the

granted appellee,

summary in an

judgment in

Montgomery

County,

employment discrimination action based on disability brought by Donald Ridgely, the appellant. The appellant poses five questions for our review, which we have consolidated into one: Was the circuit court's decision to For the following

grant summary judgment legally incorrect?1

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The questions as stated by the appellant are: Did the trial court . . . err as a matter of law by granting summary judgment to Montgomery County and finding that there was no genuine issue of material fact on the issue of whether Montgomery County discriminated against Donald Ridgely on the basis of his disability? Did the trial court . . . err as a matter of law by granting summary judgment to Montgomery County and finding that there was no genuine issue of material fact on the issue of whether Montgomery County regarded Donald Ridgely as disabled? Did the trial court . . . err as a matter of law by granting summary judgment to Montgomery County and finding that there was no genuine issue of material fact on the issue of whether Montgomery County regarded Donald Ridgely as substantially limited in the major life activities of maintaining consciousness, maintaining motor control, maintaining balance, and working? Did the trial court . . . err as a matter of law by granting summary judgment to Montgomery County and finding that there was no genuine issue of material fact on the issue of whether Montgomery County made an individualized assessment of Donald Ridgely's present ability to safely perform the essential functions of the full-duty Fire/Rescue Captain job? Did the trial court . . . err as a matter of law by granting summary judgment in favor of Montgomery (continued...)

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2.

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reasons, we answer "no" to this question and shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS
On October 6, 1980, the appellant was hired as a firefighter by the Montgomery County Department of Fire and Rescue Services ("the Department"). He was promoted several times and in 1990

attained the rank of Fire/Rescue Captain. The appellant's duties as a captain included supervising shifts at the fire station, command responding of fire to fire and rescue at the or

incidents,

assuming

fire/rescue

personnel

incident scene,

supervising

investigations,

repairing

overseeing repairs to the station, conducting employee training and evaluations, driving rescue vehicles, and providing administrative support to the Department. The position required periods of

strenuous physical effort, such as scaling ladders while carrying 60 to 65 pounds of equipment, operating heavy equipment, and being exposed to extreme environments. The Department requires firefighters to undergo annual medical examinations to ascertain their fitness for duty. The examinations are performed by doctors employed by Montgomery County's Fire and
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(...continued) County on the issue of whether Montgomery County was required to demonstrate that Donald Ridgely constituted a direct threat to the health and safety of himself or others in order to justify its actions in removing him from his position as fullduty Fire/Rescue Captain? 2

Rescue Occupational Medical Services ("OMS").

Upon performing a

fitness examination, the examining doctor completes a "Health Status Report," which states whether the employee can perform full duties. The report discloses whether the employee has any medical The doctor indicates by boxes on the report any work The report is submitted to

impairments.

restrictions he considers appropriate.

the Department, which makes the final decision about fitness and work restrictions. Ordinarily, the Department accepts the

recommendations of OMS. In February of 1997, the appellant began falling asleep during the day. He would fall asleep while driving, while performing

sedentary activities, and once while driving his riding lawn mower. A few months later, the appellant noticed that his knees would buckle and his eyes would flutter when he laughed. He discussed

these problems with his personal physician, who recommended sleep studies. A sleep study conducted in the fall of 1997 revealed that the appellant had narcolepsy. Raphaelson, He was then referred care. to a

neurologist,

Dr.

Marc

for

additional

The

appellant did not notify anyone at the Department of his condition or these developments. In February of 1998, Dr. Raphaelson diagnosed the appellant with narcolepsy and related cataplexy and prescribed several

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medications.2 The appellant immediately reported his diagnosis and the medications to the Department. He also gave the Department a

"Medical Evaluation of Work Status Form" signed by Dr. Raphaelson. It stated that the appellant was qualified "to work in FULL DUTY status, without physical restriction." On April 13, 1998, the appellant returned to Dr. Raphaelson for re-evaluation. He reported that his cataplexy had worsened,

particularly when he played tennis or laughed, and that he required more medicine to remain awake. Dr. Raphaelson adjusted the

appellant's medications.

In his office note, Dr. Raphaelson wrote

that the diagnosis was "narcolepsy with cataplexy that is poorly controlled." The appellant saw Dr. Raphaelson for follow up on May 19. He

reported that his cataplexy had significantly improved since his last visit, and that his knees did not buckle when he laughed. However, he felt "somewhat sleepy when driving to work." In his

office note, Dr. Raphaelson wrote that the appellant's narcolepsy with cataplexy was "well-controlled."

Narcolepsy is a sleeping disorder characterized by "recurrent, uncontrollable, brief episodes of sleep, often associated with hypnagogic hallucinations, cataplexy, and sleep paralysis." Smith v. Chrysler Corp., 155 F.3d 799, 802 (6th Cir. 1998). Cataplexy is a "sudden loss of muscle power following a strong emotional stimulus." United States v. Fisher, 289 F.3d 1329, 1332 n.4 (11th Cir. 2002). 4

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On November 16, the appellant reported to Dr. Raphaelson that he often had difficulty driving to work due to sleepiness, and that his eyes fluttered and his knees buckled when he laughed. If he

found a movie "tremendously funny" he would "literally become paralyzed." work, He was not bothered by sleepiness or by cataplexy at Dr. Raphaelson adjusted the appellant's

however.

medications.

In his office note, he wrote that the appellant's

condition was "under better but incomplete control." The appellant's next visit to Dr. Raphaelson was about a year later, on November 23, 1999. He reported that he continued to have He complained of side effects

cataplexy with a vigorous laugh. from the medications. medications "improved." and noted

Dr. Raphaelson adjusted the appellant's that the appellant's condition was

The appellant next saw Dr. Raphaelson on June 12, 2000.

He

reported that he was continuing to experience cataplexy upon laughing very hard. He would have to hold onto a pole or a wall He complained of side Dr. Raphaelson

when that happened to maintain his balance.

effects from the medications and of anxiety. adjusted the appellant's medications.

In his office note, Dr.

Raphaelson stated that the appellant's narcolepsy with cataplexy was "improved on current treatment."

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In

a

follow-up

appointment

on

June

26,

the

appellant

complained to Dr. Raphaelson that he was "collapsing constantly." Dr. Raphaelson again adjusted the appellant's medications. By April 18, 2001, when the appellant returned to Dr.

Raphaelson, his condition was "essentially stable."

He reported

that his knees still got weak when he laughed, but he did not collapse. Dr. Raphaelson recommended that he continue his current

medications. In a follow-up visit on August 7, 2001, the appellant reported that his cataplexy was mild, and worse when he laughed. continued to suffer from anxiety. medications. On October 30, 2001, the appellant reported to Dr. Raphaelson that he was falling asleep while doing paperwork and that his cataplexy was "still there, not real, real bad." Dr. Raphaelson He

Dr. Raphaelson adjusted his

concluded that the appellant's condition was "stable at moderately improved level," and again adjusted his medications. On February 6, 2002, the appellant reported to Dr. Raphaelson that his condition was "stable or improved" and that it did not "affect him at work." In 1998, 1999, 2000, and 2001, while under Dr. Raphaelson's care, the appellant passed his annual fitness examinations. On

April 6, 2002, Dr. Francis J. Von Feldt, an employee of OMS, performed the appellant's annual fitness examination for that year.

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This was the first time Dr. Von Feldt performed the appellant's annual examination. After performing the examination, Dr. Von Feldt submitted an inquiry to Dr. Raphaelson for more detailed information about the appellant's condition. Raphaelson to provide Specifically, Dr. Von Feldt asked Dr. a summary report of the appellant's

narcolepsy and related cataplexy and to make recommendations about medical work restrictions. Dr. Von Feldt completed a "Health

Status Report," placing the appellant on no duty status pending receipt of Dr. Raphaelson's report. Dr. Raphaelson prepared a summary report dated April 15, 2002. On April 24, the appellant met with Dr. Von Feldt and gave him Dr. Raphaelson's summary report. work restrictions. Dr. In it, Dr. Raphaelson recommended no described the appellant's

Raphaelson

condition as follows: He has responded well to medication treatment for narcolepsy . . . . [The appellant] has had occasional episodes when his knees would buckle, lasting for 10-15 seconds, associated with episodes of laughing or other stimuli. These events, at their peak, occurred up to six or seven times per week, and have diminished greatly during appropriate medication treatment. Over the last three months, for example, the patient has had approximately one similar episode, and it did not occur while working. Since starting treatment in 1998, the patient has had no episodes when he was unable to perform job-related duties. [The appellant] has some leeway in use of his medications for narcolepsy, and he takes higher doses of medicines during very long work shifts. There have been no episodes of sleep initiation interfering with work or leisure. 7

Dr.

Raphaelson

also

suggested

that

the

County

perform

a

"maintenance of wakefulness test," to document the appellant's ability to stay awake, providing the County had a policy in place with guidelines for study interpretation.3 On May 1, Dr. Von Feldt performed a follow-up examination of the appellant and filled out a "Health Status Report." Dr. Von

Feldt concluded that the appellant should remain on no duty status. Dr. Douglas Robinson, another physician at OMS, attended the examination. On May 6, 2002, Dr. Von Feldt sent a memorandum to Dr. Robinson about the appellant's condition. He described the

appellant's symptoms, noting that he had "severe somnolence since February, 1997," and had experienced episodes of cataplexy six to seven times per week in the form of knee buckling lasting ten to fifteen seconds at a time. appellant took his Dr. Von Feldt further stated that the "variably, based on subject

medication

considerations, not precisely as prescribed."

Dr. Von Feldt felt

these symptoms "represent[ed] a well-documented, proximate threat to self, coworkers and the public."

On July 3, 2002, the appellant wrote to Dr. Raphaelson to object to comments made in the April 15 summary report. Specifically, the appellant stated that his knees would only buckle for one second and only if he laughed extremely hard. The appellant asked the neurologist to correct these mistakes in writing. 8

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Dr. Von Feldt also noted in his May 6 memorandum that the appellant's Association symptoms 1582, implicated on the National Fire Protection for Fire

Standard

Medical

Requirements

Fighters and Information for Fire Department Physicians ("NFPA Standard"). appellant's Under paragraph 3-13.3(b) of that standard, the condition was a "Category B Medical Condition,"

analogous to a "seizure disorder."4

Dr. Von Feldt concluded on

that basis that the appellant should not be allowed to operate County vehicles or work on scaffolding, ladders, roofs, or any other unprotected areas above ground or floor level. On May 8, Dr. Von Feldt again wrote to Dr. Robinson, to report the substance of a discussion he had had with Dr. Raphaelson about the appellant's suitability for full duty. Dr. Raphaelson had

recommended that the County compile work reports, solicited from other employees, and that he perform a maintenance of wakefulness test on the appellant. On May 14, Dr. Von Feldt performed another examination of the appellant and completed a "Health Status Report," in which he recommended that the appellant be placed on light duty status. On

that status, the appellant would be restricted from working at above floor level heights and from operating County vehicles.

Under the NFPA Standard, a "Category B Medical Condition" is "[a] medical condition that, based on its severity or degree, could prevent a person from performing as a member in a training or emergency operational environment by presenting a significant risk to the safety and health of the person or others." 9

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The appellant began working on light duty status at the end of May 2002. He received his regular pay.

On May 21, Dr. Raphaelson completed a "Medical Evaluation of Work Status" form for the appellant, stating that he was qualified to work on full duty status. On July 11, Dr. Robinson wrote to Roger Strock, Chief of the Department, recommending that the appellant remain on light duty status. Dr. Robinson opined that the appellant's chronic medical

condition was "not acceptable" under the NFPA Standard. On September 23, at the request of the Department, Dr.

Robinson wrote to the appellant to summarize his reasons for rendering a final determination of "not acceptable." explained: I have determined that your cataplexy, which is not fully controlled despite the use of several prescription medications and regular follow-up visits with your neurologist, poses a significant and immediate threat to you, your fellow fire-and-rescue members and the public being served during fire and rescue operations. Your cataplexy is of an unpredictable nature. An attack can occur at any time. Sudden loss of control of your muscles for even a few seconds can be disastrous during the rapid, physically demanding pace of fire-and-rescue operations. (Emphasis in original.) Dr. Robinson gave two hypothetical situations in which the appellant's condition could be dangerous: 1) You are involved in an aerial rescue on a ladder seventy feet from ground level, carrying a victim down to safety. Your legs buckle due to your cataplexy, causing both you and the victim to fall to your deaths. 2) You 10 Dr. Robinson

are driving any of the forty ton-plus emergency vehicles in operation. You lose control of your legs due to your cataplexy and, so, lose control of the emergency vehicle. This unpredictable circumstance involving a forty tonplus emergency vehicle out of control causes significant injury or death to you and to members of your fire-andrescue team and the public. On October 30, Chief Strock wrote to the appellant informing him that, in light of OMS's recommendation, "you are no longer medically qualified to perform your job as a Fire/Rescue Captain." Chief Strock continued: [I]t is necessary to inform you that you cannot continue working in a position for which you are not qualified. Several options are available to employees who are medically unfit to perform the job for which they were hired. Such employees can apply for service-connected disability retirement or non-service-connected disability retirement. Employees can also resign, apply for an early or normal retirement (if eligible), or seek alternative placement in a different County job that they are medically able to perform. . . . Your position as a Fire/Rescue Captain is vital to the delivery of fire and rescue services to the public. The need and demand for those services requires that the incumbent of the position be medically able to perform. Therefore, if you do not diligently pursue one of the aforementioned options within the time periods specified herein, [the Department] will begin the process to terminate your employment. Despite Chief Strock's letter, the appellant was not forced to retire, and continued working on light duty status. On November 6, the appellant returned to Dr. Raphaelson for a follow-up visit. Dr. Raphaelson noted that the appellant's

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narcolepsy with related cataplexy was "subjectively stable and improved since May."5 In the meantime, the appellant retained counsel. On November

12, he wrote to Dr. Raphaelson, asking him to give his lawyer a complete report of his condition and a signed copy of a "Medical Evaluation of Work Status" form stating he is able to return to full duty status. The appellant instructed Dr. Raphaelson to state in his report that the appellant's knees only buckled when he laughed hysterically, that he had only experienced one episode of cataplexy in the past ten months while on medication, and that the duration of the episode was only one second. Dr. Raphaelson responded by report dated November 13, 2002, opining that he did not consider the appellant "to be a significant risk to his health or safety," and that he was not aware of any limitations "preventing [him] from performing a position of

fire/rescue captain." On November 20, Dr. Raphaelson completed a "Medical Evaluation of Work Status" form, stating that the

appellant was qualified to work in full duty status. The next day, November 21, 2002, the appellant filed a "Charge of Discrimination" with the Montgomery County Office of Human

During this appointment, the appellant asked the neurologist to rewrite his notes to reflect corrections the appellant suggested. Dr. Raphaelson would not agree to rewrite any notes but did agree to make note of the appellant's suggested corrections. 12

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Rights.

He alleged discrimination by the County in placing him on

light duty status. On February 7, 2003, in the Circuit Court for Montgomery County, the appellant filed suit against the County, alleging disability discrimination, in violation of Article 1, Chapter 27 of the Montgomery County Code (2001 ed.) ("MCC"). Specifically, he

alleged that the County was "regarding [him] as . . . disab[led]" because of his narcolepsy and related cataplexy, and was unlawfully discriminating against him on that basis.6 front pay, compensatory damages, costs, He asked for back and attorney's fees, and He

reinstatement as a Fire/Rescue Captain on full duty status. demanded a jury trial. The County filed a timely answer.

In the meantime, on February 13, Dr. Von Feldt wrote to the appellant, stating he wanted to give the appellant "every

opportunity to establish that [he could] safely perform all duties of [a] firefighter," and noting that Dr. Raphaelson had certified the appellant for full duty, but further stating that the

neurologists's records "clearly document both cataplexy and sleep problems." Raphaelson Dr. answer Von Feldt asked the appellant including to have Dr. the

several

questions,

whether

appellant's condition was "substantially controlled" and if the

The appellant also alleged discrimination on the basis of actual disability. He later abandoned that allegation. 13

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appellant was capable of working at heights and operating heavy vehicles.7 Two months later, on May 6, the appellant returned to Dr. Raphaelson for a follow-up appointment. Dr. Raphaelson noted that

the appellant's narcolepsy with cataplexy was "well-controlled" and that the appellant "continue[d] to do well." On July 2, Dr. Raphaelson wrote a letter to Dr. Craig Thorne, an independent contractor working for OMS, stating that the

appellant was "capable of safe operation of heavy vehicles" and "capable of safe performance of duty while working at heights." On July 8, Dr. Raphaelson spoke to Dr. Thorne, telling him that the appellant's symptoms were "rare and mild episodes of knee buckling only" and that he believed the appellant was not

significantly at risk of harm, even with full firefighter duties. The next day, Dr. Thorne performed a "follow-up medical evaluation" of the appellant. appellant's controlled." 1. narcolepsy and Dr. Thorne concluded that the related cataplexy were "well-

He reported the following recommendations:

[The appellant] appears not to be at significant risk with regard to his well-controlled narcolepsy

On March 5 and March 6, the appellant wrote to Dr. Von Feldt, attempting to rebut Dr. Von Feldt's statements about his medical condition by relying on previous statements by Dr. Raphaelson and his own understanding of his condition. Additionally, on June 20, the appellant sent a memorandum to Dr. Von Feldt, attempting to satisfy the doctor's concerns about his condition. The appellant complained that Dr. Von Feldt's actions were "clearly discriminatory." 14

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2.

3.

and cataplexy. Although I cannot fully guarantee his safety, because of his current level of control and his only infrequent symptoms of knee buckling on occasion, provoked by laugher, and no indication that this affects his ability to perform his essential job functions, I would recommend that he is medically fit for full duty. However, I would also recommend that he report to the clinic: 1. Immediately for any symptoms of alteration in level of consciousness and/or any loss of motor control, so that his personal safety in his job (and the safety of others) can be addressed, and 2. Any changes in his medications (to ensure no adverse side effects that may interfere with job performance). He should continue to follow-up with his treating neurologist. I would recommend a twice-yearly evaluation and a letter from the neurologist attesting to the stability of his symptoms and his work capability.

(Emphasis in original.) On August 1, Dr. Von Feldt wrote to Thomas Carr, the new Chief of the Department, stating that he had found the appellant to be "Medically Acceptable with Qualifications." Dr. Von Feldt

recommended a transition period of three months, during which the appellant vehicles. The appellant returned to full duty status on October 5, 2003. As part of discovery, the appellant, Dr. Robinson, Dr. would avoid working at heights and driving County

Raphaelson, and Dr. Von Feldt, among others, were deposed in January and February of 2004. The County moved for summary judgment on March 5, 2004, on the ground that, on the undisputed material facts, the appellant could not show he was regarded as disabled by the County. 15 Specifically,

the County argued that the appellant was not regarded as disabled because the County 1) placed him in another position; and 2) only regarded him as unable to work in one job -- that of firefighter -and not as unable to engage in the major life activity of working. The County asserted further that it was justified in maintaining high fitness standards for its firefighters, as necessary to protect the public, and that it had acted prudently to assess whether, by continuing in his position at full duty, the appellant was posing a direct threat to himself or others.8 The appellant filed a timely opposition to the County's motion and request for a hearing. In his supporting memorandum of law, he argued that he had satisfied the prima facie case for

discrimination. establish that:

He argued that he could present evidence to (1) the County regarded him as substantially

limited in the major life activities of working, maintaining consciousness, maintaining motor control, and maintaining balance, due to his narcolepsy and cataplexy, and hence regarded him as disabled; 2) he was qualified for his position and was not a direct threat because he had not experienced any incidents of cataplexy or narcolepsy while on the job; and 3) he was prohibited from serving

In support, the County attached portions of depositions, the "Health Status Reports," the "Medical Evaluation of Work Status" forms, and numerous letters of correspondence between the doctors, the Department, and the appellant, much of which we already have discussed. 16

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in the position of Fire/Rescue Captain due to his narcolepsy and cataplexy.9 The County filed a reply memorandum. It argued that and

maintaining

motor

control,

maintaining

consciousness,

maintaining balance are not major life activities within the meaning of disability law. Alternatively, even if these activities are major life activities, the County did not regard the

appellant's narcolepsy and cataplexy as substantially limiting them. The County also asserted that firefighting is not a class of jobs, and thus the appellant could not prove he was regarded as being substantially limited in the major life activity of working. A hearing on the County's motion was held on May 6, 2004. At

the conclusion of the hearing, the court found that there were no material facts in dispute and that the County was entitled to judgment as a matter of law. The court issued a brief written

order granting summary judgment on May 11, 2004. The appellant noted a timely appeal.

STANDARD OF REVIEW

In support of his motion, the appellant provided an affidavit attesting that, "[s]ince February 1998, the only cataplexy I have experienced (with the exception of June 18, 2000, which was six days after I went off Anafranil), was my knees buckling approximately one second while laughing hysterically." He further attested that he did not laugh while working and had "never experienced any problems with narcolepsy or cataplexy while engaged in [his] work duties as a full duty Fire/Rescue Captain." The appellant also attached much of the same documentation and correspondence that the County had attached to its motion. 17

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We review a circuit court's decision to grant summary judgment de novo, as it is a purely legal decision. Livesay v. Baltimore

County, 384 Md. 1, 9 (2004); Nesbit v. Govt. Employees Ins. Co., 382 Md. 65, 72 (2004). We determine whether the circuit court

properly concluded that there was no dispute of material fact, and if so, whether the circuit court's decision that the moving party was entitled to summary judgment was legally correct. See Md. Rule 2-501(f); Johnson v. Mayor and City Council of Baltimore City, 387 Md. 1, 5 (2005); Coroneos v. Montgomery County, 161 Md. App. 411, 422 (2005).

DISCUSSION
(a) An iteration of the law of disability discrimination is necessary before we discuss the issues on appeal. The appellant alleges that he was discriminated against on the basis of a disability, in violation of Article 1, Chapter 27 of MCC. MCC section 27-19(a) provides, in relevant part, that, "because of the . . . disability of a qualified

individual, or because of any reason that would not have been asserted but for the . . . disability," an

employer10 may not:

An "employer" is defined by the MCC as "any person who employs one or more individuals in the County, either for compensation or as a volunteer" and includes, inter alia, (continued...) 18

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(A)

fail or refuse to hire, fail to accept the services of, discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment; or limit, segregate, or classify employees in any way that would deprive or tend to affect adversely any individual's employment opportunities or status as an employee.

(B)

The MCC also defines "disability" as "a physical or mental impairment that substantially limits one or more of an individual's major life activities, a record of having such an impairment, being associated with an individual with a disability, or being regarded as having such an impairment." MCC

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