International Association of
Chiefs of Police
www.theiacp.org
Legal Officers Section Annual Conference
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Conference Papers
Prepared by
Peggy R. Mastroianni
Associate Legal Counsel
Washington, DC
COVERAGE/DISABILITY
Impairment:
Andrews v. State of Ohio, 104 F.3d 803, 6 AD Cases (BNA) 322 (6th Cir. 1997).
Held: State troopers whose weight exceeded departmental standards or who failed fitness tests do not have disabilities. There was no evidence of a physiological disorder. Physical characteristics do not constitute impairments.
Major Life Activity:
Colwell v. Suffolk County Police, 158 F.3d 635, 8 AD Cases (BNA) 1232 (2d Cir. 1998), cert. denied, 526 U.S. 1018 (1999). Police officers brought suit after being passed over for promotions. Two had back injuries resulting in sciatica and chronic degenerative disk disease, respectively. The third had had a cerebral hemorrhage nine years earlier. \Jury verdict for plaintiffs reversed and case remanded.
Held: Driving, performing mechanical work on cars, performing housework (other than basic chores), shopping in the mall, skiing, and golfing are not major life activities. Nor are moving furniture, doing yard work, painting, plastering, gardening, and shoveling snow in themselves major life activities.
Substantial Limitation:
Krocka v. City of Chicago, 203 F.3d 507, 10 AD Cases (BNA) 289 (7th Cir. 2000).
Held: Plaintiff's severe depression is not substantially limiting where, with Prozac, he exhibits no symptoms and is able to perform adequately as a police officer.
Spades v. City of Walnut Ridge, 186 F.3d 897, 9AD Cases (BNA) 1015 (8th Cir. 1999). Held: Police officer with depression not substantially limited where medication and counseling "allow him to function without limitation".
Cowell v. Suffolk County Police Dept., 158 F.3d 635, 8 AD Cases (BNA) 1232 (2d Cir. 1998). Three police officers--two with back injuries and one with repercussions of a cerebral hemorrhage--were passed over for promotions.
Held: Interference with plaintiffs' standing, sitting, lifting, sleeping, and working was too minor to substantially limit them, compared with the average person. The fact that plaintiffs' limitations affect their ability to fulfill the rigorous demands of police work does not show that plaintiffs are substantially limited in comparison to the average person.
Mathes v. Harris City, 12 AD Cases (BNA) 182 (S.D. 2000). Plaintiff with partially formed left hand has a disability where he cannot do some police academy tasks (shooting, subduing) and certain everyday activities (opening a jar).
Substantial Limitation in Working:
Muller v. Costello, 187 F.3d 298 (2d Cir. 1999). Correctional officer is not a class of jobs.
Regarded As Having a Disability:
Giordano v. City of New York, 274 F.3d 740 (2d Cir. 2001).
Held: Former police officer who took anti-coagulant medication following aortic valve replacement surgery was not regarded as disabled, even though he was discharged because he was regarded as unable to work as a city police officer. The court found that at most he was regarded as unable to work in police or investigative or security position that involved substantial risk of physical confrontation.
McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001). Deputy sheriff with post-traumatic stress disorder was not considered for several job openings because of her previous mental problems. Evidence showed that the defendants did not believe her to be able to do a law enforcement job without mental illness returning. District court granted summary judgment to defendant.
Held: Reversed and remanded. Plaintiff raised an issue of material fact as to whether defendant regarded her as disabled (substantially limited in the class of law enforcement jobs).
Krocka v. City of Chicago, 203 F.3d 507, 10 AD Cases (BNA) 289 (7th Cir. 2000). Police officer's placement in Personal Concerns Program after employer learned he was taking Prozac did not render him "regarded as" having a disability where position allowed him to continue working as a police officer without restrictions.
Colwell v. Suffolk County Police Dept., 158 F.3d 635, 8 AD Cases (BNA) 1232 (2d Cir. 1998), cert. denied, 526 U.S. 1018 (1999). Police officers brought suit after being passed over for promotions. Two had back injuries resulting in sciatica and chronic degenerative disk disease, respectively. The third had experienced a cerebral hemorrhage nine years earlier.
Held: Prolonged assignments to light duty status does not support the inference that the officers were regarded as substantially limited in their ability to work.
Miller v. City of Springfield, 146 F.3d 612, 8 AD Cases (BNA) 321 (8th Cir. 1998). Plaintiff was working for the city as a dispatcher when she unsuccessfully applied for a position as a police officer. She was rejected because of her score on a psychological test. Plaintiff argues that the City regarded her as disabled.
Held: "Working," within the meaning of the ADA regulations, "does not mean working at a particular job of the person's choice." Springfield "could not have regarded [Plaintiff] as substantially limited in the major life activity of working because she was working for the City at the time." Summary judgment for employer affirmed.
Andrews v. State of Ohio, 104 F.3d 803, 6 AD Cases (BNA) 322 (6th Cir. 1997).
Held:
"No regarded as" claim where employer does not perceive overweight
state trooper as having an impairment.
Rule v. Missouri Gaming Co., 11 AD Cases (BNA) 561 (W.D.Mo. 1999). Plaintiff with diabetes may be regarded as disabled by employer to whom he applied for security guard position. Employer rejected plaintiff because plaintiff's diabetes was "out of control" but did not specify which specific duties plaintiff could not perform (inability to "patrol" invokes broad range of positions).
Holiday v. City of Chattanooga., 206 F. 3d 637 (6th Cir. 2000). HIV positive applicant was rejected as police officer because he was not strong enough.
Held: Summary judgment for employer denied where:
-rejecting doctor made no individualized inquiry.
-plaintiff passed agility test and had experience as a police officer.
-defendant produced no evidence that plaintiff was weak.
-there was evidence that defendant feared transmission of virus.
Doane v. City of Omaha, 115 F.3d 364, 6 AD Cases (BNA) 1553 (8th Cir. 1997). Two years after becoming a police officer, plaintiff lost vision in one eye because of glaucoma. With glasses, plaintiff's vision was correctable to 20/20. Plaintiff successfully performed as a police officer for seven years after his blindness. After an eye examination in 1984, plaintiff was given the choice of resigning or applying to be a "911" officer. Plaintiff served as a "911" officer, but made several requests to be reinstated to a police officer position. When plaintiff applied for an open position in 1992, the city rejected him based on vision qualifications listed in the job notice.
Held: Verdict for plaintiff upheld. Court held that plaintiff was qualified for and could perform the essential functions of the police officer position because he had the necessary educational background, valid motor vehicle license, physical fitness; correctable vision, and nine years of successful performance as a police officer.
Essential
Functions:
Cripe
v. San Jose, 2001 WL 930245 (9th Cir. 2001). The ability to make forcible
arrests and the ability to subdue suspects may not be essential functions of
specialized-assignment positions for police officers where there is a factual
dispute as to whether such skills are required for all specialized-assignment positions
(notwithstanding the job descriptions prepared by the police department).
Frazier v. Simmons, 254 F.3d 1247 (10th Cir. 2001).
The ability to run, participate in violent activity, and carry a firearm are essential functions of a corrections investigator position.
Hamlin v. Charter Township of Flint, 165 F.3d 426, 8 AD Cases (BNA) 1688 (6th Cir. 1999). Assistant fire chief with heart problems challenged his termination. Jury verdict for plaintiff affirmed. Case reversed and remanded on issue of damages.
Held: Plaintiff is qualified and can perform essential functions of the job, even though he cannot perform active firefighting duties. Because his job consisted mainly of administrative duties, plaintiff could perform essential functions of the job, and his inability to engage in firefighting posed no direct threat to the firefighters.
Stone v. City of Mount Vernon, 118 F.3d 92, 6 AD Cases (BNA) 1685 (2d Cir. 1997). Firefighter who became paraplegic in an off-duty accident was denied placement in either of two of the department's "light-duty" bureaus. The fire department argued that persons placed into those light-duty bureaus must be able to perform fire-suppression activity for instances where there are multi-alarm fires requiring extra man/woman power.
Held: Summary judgment was precluded because a reasonable fact-finder could infer that the ability to perform fire-suppression activity was not an essential function of the jobs in the light-duty bureaus and employer never once asked any employee in those bureaus to engage in fire-suppression activity.
Pickering v. City of Atlanta, 75 F.Supp.2d 1374, 10 AD Cases (BNA) 761 (N.D. Ga. 1999), aff'd, 235 F.3d 1344 (11th Cir. 2000). Inmate supervision is essential function of corrections officer job (upholding discharge of officer who could not engage in such activity).
Miller v. Illinois Dept. of Corrections, 916 F.Supp. 863, 6 AD Cases (BNA) 678 (N.D. Ill. 1997).
Held: Employee who lost most of her vision was not qualified to be corrections officer where she could only perform two of the many essential functions of the position. Employer has legitimate reason for requiring officers to be "multiply able," i.e., able to rotate through multiple job duty positions and be able to respond to unexpected demands, such as a prison riot.
REASONABLE ACCOMMODATION
NOTICE
OF DISABILITY AND NEED FOR REASONABLE ACCOMMODATION
Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999).
Held: Request for accommodation not required where it would be a futile gesture. (Here employer had a policy of refusing to reassign police to Career Service jobs.)
REASONABLE ACCOMMODATION GENERALLY:
Keever v. Middletown, Ohio, 145 F.3d 809, 8 AD Cases (BNA) 388 (6th Cir. 1998), cert. denied, 525 U.S. 963 (1998).
Plaintiff was a police officer who suffered on-the-job injuries which prevented him from continuing in that position. He needed a job which would allow him to work short shifts and take frequent absences. Plaintiff rejected the position that was offered by the City. Summary judgment affirmed for City.
Held: The employer has the ultimate discretion to choose between effective accommodations. An accommodation can be reasonable even if it was not the accommodation preferred by the employee. EEOC regulations also provide that if an employee rejects an offered reasonable accommodation, "the individual will not be a qualified individual with a disability."
Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 6 AD Cases (BNA) 1409 (11th Cir. 1997). For four years, the police department accommodated a partially-blind police detective by allowing him to work primarily in the office, and allowing him to accompany other officers to crime-scene investigations, even though driving and performing independent crime-scene investigations were two essential functions of the job of police detective. When a new police chief came in and restricted plaintiff's duties to only office work, the plaintiff quit and argued that he was constructively discharged because of his disability.
Held: Police department's decision to cease making accommodations pertaining to essential functions of plaintiff's job did not violate the ADA. Employer need not continue a reasonable accommodation that involved reallocating essential job functions. Court cautioned that its conclusion regarding the essential functions of a police detective job was very fact-specific.
TYPES OF REASONABLE ACCOMMODATION:
JOB RESTRUCTURING:
Frazier v. Simmons, 254 F.3d 1247 (10th Cir. 2001). Corrections investigator with multiple sclerosis could not show that job-restructuring would accommodate his inability to run, engage in violent behavior, and carry a firearm (essential functions of his position).
REASSIGNMENT:
Keever v. Middletown, Ohio, 145 F.3d 809, 8 AD Cases (BNA) 388 (6th Cir. 1998), cert. denied, 525 U.S. 963 (1998). Plaintiff was a police officer who suffered on-the-job injuries which prevented him from continuing in the same position. He needed a job which would allow him to work short shifts and take frequent absences. Plaintiff rejected the position that was offered by the City. Summary judgment affirmed for City.
Held: Reassignment to a desk job in which plaintiff's physical and mental responsibilities are significantly reduced, and which would enable him to take leave when necessary, was reasonable.
Stone v. City of Mount Vernon, 118 F.3d 92, 6 AD Cases (BNA) 1685 (2d Cir. 1997). Firefighter who became paraplegic in an off-duty accident was denied placement in either of two of the department's "light-duty" bureaus. The fire department argued that because persons placed into those light-duty bureaus must be able to perform fire-suppression activity in case there is a multi-alarm fire requiring extra man/woman power, placing the plaintiff in a job in one of those light-duty bureaus would have been an unreasonable accommodation and would have placed an undue hardship on the department.
Held: Summary judgment was precluded because a reasonable fact-finder could infer that placing plaintiff in either light-duty bureau was not an undue hardship. The record indicated that the fire department periodically assigned disabled employees to the light-duty bureaus and never once asked any employee in those bureaus to engage in fire-suppression activity.
INQUIRIES/EXAMS/CONFIDENTIALITY
Buchanan v. City of San Antonio, 85 F.3d 196, 5 AD Cases (BNA) 987 (5th Cir. 1996).
Held: No bona fide offer when conditioned on successful completion of entire screening process (not just medical exam) including physical, psych exam, polygraph, fitness test, assessment board, and extensive background check.
APPLICANTS (Post-Offer)
Miller v. City of Springfield, 146 F.3d 612, 8 AD Cases (BNA) 321 (8th Cir. 1998). Plaintiff was working for the city as a dispatcher when she applied for and was denied a position as a police officer. Position was rejected because of her score on a psychological test which showed she had depression.
Held: Since plaintiff was not classified as disabled under the ADA she could not have been screened out on the basis of a disability. "In any event, we easily conclude that appropriate psychological screening is job-related and consistent with business necessity where the selection of individuals to train for the position of police officer is concerned."
Krocka v. City of Chicago, 203 F.3d 507 (7th Cir. 2000).
Held: Medical evaluation conducted after employer learned that police officer was taking Prozac was job-related.
Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir. 1999). Requirement that police officer undergo fitness for duty exam and tuberculosis testing (including HIV test) is job related and consistent with business necessity.
Davis-Durnil v. Village of Carpentersville, 128 F.Supp.2d 528 (N.D.Ill. 2001). Police officer suffering from post-traumatic stress disorder was required to undergo mental health evaluations and take a desk job (full pay and benefits) during the evaluation.
Held: Psychological counseling and fitness-for-duty mental health evaluations are not in violation of the ADA for public safety officer, even if the police officer is put in an administrative position (rather than street patrol) during the time of the evaluations. Summary judgment granted to defendant employer.
SAFETY
ISSUES/DIRECT THREAT
DIABETES:
Kapche v. City of San Antonio, 176 F.3d 840, 9 AD Cases (BNA) 623 (5th Cir. 1999). Improvements in medical technology and changes in federal transportation law may warrant overturning case law holding that insulin dependent diabetic drivers are per se unqualified. Police cadet applicant's suit reinstated.
Burroughs v. City of Springfield, 163 F.3d 505, 8 AD Cases (BNA) 1677 (8th Cir. 1998). Police officer with diabetes brought suit after the City instructed him to accept a demotion or resign. Summary judgment for City affirmed.
Held: The City properly relied on the medical advice of a diabetes specialist that plaintiff could present a direct threat to himself and others if he experienced another hypoglycemic episode while on duty. Plaintiff had previously suffered two hypoglycemic episodes on the job that rendered him disoriented and dysfunctional while armed and on duty.
Siefken v. Village of Arlington Heights, 65 F.3d 664, 4 AD Cases (BNA) 1441 (7th Cir. 1995)
Held: Termination of probationary diabetic police officer after he had a hypoglycemic episode and drove in erratic manner does not violate ADA. Employer was not required to give second chance as a reasonable accommodation.
Bombrys v. City of Toledo, 849 F. Supp. 1210, 3 AD Cases (BNA) 651 (N.D. Ohio 1993). City rejected applicant for police officer position who had insulin-dependent diabetes.
Held: In permanently enjoining defendant "from imposing a blanket exclusion of person with insulin-dependent diabetes from employment as police officers...[,]" the court first examined the plaintiff's condition, finding that, except for his diabetes, he had passed all physical examinations. Court found that he was able to control his diabetes by taking insulin. Court then examined the police officer position in the City of Toledo, finding that police officers did not have to work up to 12 hours on a regular basis; that nothing in nature of job prevented on-duty police officers from taking glucose tablet to control low blood sugar; that it was possible for on-duty police officers to safely inject insulin in a matter of seconds while fully clothed; and that persons with insulin-dependent diabetes were in fact serving as police officers without incident. Court reserved for trial the question whether plaintiff was not otherwise qualified because of past diabetic episodes and/or insulin reactions.
HIV/AIDS:
Holiday v. Chattanooga, 206 F.3d 637, 10 AD Cases (BNA) 502 (6th Cir. 2000), reh'g denied, 2000 U.S. App. Lexis 9557 (6th Cir. 2000).
Held: HIV positive police officer's claim can go to jury on hiring issue. City had no right to rely on doctor's disqualification where there was no evidence that he conducted an individualized inquiry.
Doe v. D.C., 796 F.Supp. 559, 2 AD Cases (BNA) 197 (D.D.C. 1992).
Held: Risk of transmission by HIV+ firefighter during the performance of official duties is so remote as to be unmeasurable - direct threat has not been shown
HEARING IMPAIRMENT:
Karbusicky v. City of Park Ridge, 950 F.Supp. 878, 6 AD Cases (BNA) 661 (N.D. Ill. 1997).
Held: Ex-marine with congenital hearing loss would pose direct threat to himself or others as a patrol officer in occasionally chaotic atmosphere of police emergencies.
VISION IMPAIRMENT:
Doane v. City of Omaha, 115 F.3d 624, 6 AD Cases (BNA) 1553 (8th Cir. 1997).
Held: Judgment affirmed for plaintiff who was rejected for reemployment as a police officer. Despite plaintiff's blindness in one eye, a reasonable jury could have concluded that plaintiff was a qualified individual with a disability. Plaintiff's vision impairment, though disabling when not considering mitigating measures, did not prevent him from performing the essential functions of the job of police officer since the evidence showed that he had the necessary educational background; a valid motor vehicle license; had successfully performed the job of police officer for nine years despite his disability; and his eyesight was correctable to 20/20.
Castellano v. City of New York, 142 F.3d 58 (2d Cir. 1998), cert. denied, 526 U.S. 1131 (1999). Retired police officers and firefighters who are challenging disability retirement plan's lesser benefits are "qualified" under the ADA because they were qualified while employed and on that basis became entitled to benefits. Some fringe benefits are paid out precisely because people cannot work.
6/02
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