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Former Maui Officer Files Disability Discrimination Lawsuit

August 28, 2014, 2:57 PM HST · Updated August 28, 3:02 PM
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Former officer files lawsuit. Graphics by Wendy Osher for Maui Now.

Former officer files lawsuit. Graphics by Wendy Osher for Maui Now.

By Wendy Osher

A former officer with the Maui Police Department filed a lawsuit alleging disability discrimination against the County of Maui and former Police Chief Gary Yabuta following the officer’s termination in December 2013, after 13 years of service.

Dukie Racadio, 38, served as a police officer from 2000 to 2013, but received a notice of termination stating that he was “no longer medically qualified to continue as a Police Officer,” according to claims in the suit filed on Aug. 1, 2014, in Second Circuit Court.

Police Department Acting Police Chief Clayton Tom told Maui Now he has no comment on the suit and noted that The Office of Corporation Counsel was handling the complaint. A request for comment from the County of Maui was not returned.

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The suit stems from a series of incidents in which Racadio suffered several seizures, the first of which occurred while on patrol duty on Aug. 30, 2004.

According to information contained in the document, Racadio was involved in a traffic accident in which he lost consciousness and struck a fire hydrant.  The day after the accident, an MRI scan of Racadio’s brain revealed a large “areriovenous malformation,” a congenital condition, which the plaintiff claim states, “likely caused a seizure.”

He was prescribed the anti-convulsant drug Dilantin, which is used to treat and control epileptic seizures.

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Later that same year, Racadio underwent brain surgery to remove the areriovenous malformation and continued to be treated with Dilantin, but experienced three additional seizures–all of which were associated with a “subtherapeutic level of Dilantin,” according to the Plaintiff’s complaint.

One incident occurred in 2005 or 2006, and a second incident occurred in 2008 or 2009–neither of which resulted in adverse employment action by former Chief Yabuta or the County of Maui, according to the lawsuit.

A third seizure occurred on February 19, 2013 while Racadio was exercising at 24 Hour Fitness in Kahului.

Racadio was evaluated by two neurologists following the incident–one at the request of the County’s third-party administrator for workers’ compensation claims (Loren Direnfeld, MD), and another (Stuart Pang, MD) identified as the plaintiff’s treating neurologist.

According to the lawsuit, Dr. Pang issued an opinion saying Racadio was capable of safe driving starting June 20, 2013, that he did not have any neurological impairment, and that he expected Racadio to be free of seizures in the future.

Two days later, Racadio was notified by the County DMV that his driver’s license was being suspended under Hawaii Revised Statutes 286-119.  Under the law, the examiner is allowed to suspend any driver’s license “without hearing when the examiner has reasonable cause to believe that the licensee is incompetent to operate the type of motor vehicle for which the licensee holds a license or is afflicted with mental or physical infirmities or disabilities which would make it unsafe for the licensee to operate a motor vehicle of the type for which the licensee is licensed.”

The evaluation by Dr. Direnfeld diagnosed Racadio with a seizure disorder, saying he was “intact neurologically, and his outlook symptomatically and functionally is good as long as he reliably takes Dilantin,” according to the complaint.

According to the lawsuit, the diagnosis also included the opinion that once Racadio had been consistently found to demonstrate a therapeutic level of Dilantin, “it is likely he can return to full-time, full-duty work including driving on and off the job.”

According to information contained in the complaint, Dr. Direnfeld indicated that if Racadio continued to comply with the treatment regimen, and maintained a therapeutic level of Dilantin, the likelihood of him having a seizure was “significantly reduced.”

On July 8, 2013, Racadio received a letter stating that he qualified to be eligible for a promotion to Police Sergeant/Detective, based upon examination scores in which he scored among the top 5% of applicants, and was eligible for an interview.

Two days later on July 10, he was informed that he no longer could be employed as a police officer.  According to the lawsuit, on Sept. 11, 2013, Racadio received a notification from Chief Yabuta that “due to his disorder, he was no longer qualified to be a police officer, but was being provided with an opportunity to choose employment as an Emergency Services Dispatcher I, or other vacant positions within the County,” and was given a deadline of Sept. 17 to decide if he wanted to pursue the options.

Racadio also received a letter in September, 2013 informing him that he was on a certified list of officers eligible for promotion to Police Sergeant/Detective; however he was further informed that he was not being considered for the promotion due to his seizure disorder, according to the complaint.

On November 4, 2013, Racadio provided notice to Chief Yabuta that his Hawaiʻi driver’s license was restored without any restrictions, and he was able to resume driving.

On December 3, 2013, Chief Yabuta notified Racadio of termination of employment as a police officer would end at the close of business on Dec. 31, 2013 stating that the plaintiff was “no longer medically qualified to continue as a Police Officer.”

At the time he was terminated, the lawsuit states that Racadio was assigned to investigate motor vehicle accidents, which primarily involved operating a motor vehicle issued by the County, investigating accidents and preparing reports.

The lawsuit states that during his career, Racadio “received several promotions and countless commendations, and has never had a written reprimand or suspension.”

Since his termination, Racadio was hired by the County of Maui Department of Planning Zoning Administration and Enforcement Division and was assigned a county vehicle for work purposes.

On July 5, 2014, he applied with Securitas to work as a law enforcement officer at the Kahului Airport, and was informed that once a background check clearance is received, he would be able to commence work in which duties would include operating a motor vehicle, carrying a firearm, and enforcing the law.

Under the lawsuit, Racadio is being represented by Attorneys Matson Kelley and Jon Jacobs and is seeking a trial by jury.  In addition to allegations of disability discrimination, the lawsuit also alleges intentional infliction of emotional distress, and seeks punitive damages against Yabuta.

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