RICHARD MILLS, District Judge:
A tragic story.
A car accident left the Plaintiff blind.
Her employment as a correctional officer was terminated.
Unfortunately, the Americans with Disabilities Act provides no relief.
Bobbi Miller began her employment as a correctional officer with the Illinois Department of Corrections ("DOC") on April 11, 1988. She began her employment at the Lincoln Correctional Center and was subsequently transferred to the Graham Correctional Center.
In June of 1986, Miller was injured in an automobile accident and sustained severe head injuries. In the summer of 1993 — as a result of the head injuries — Miller experienced substantial loss of vision. Consequently, Miller was placed on indefinite medical leave upon the recommendation of Dr. Gary Blackman, an optometrist. In July and August of 1993, and January of 1994, Miller was examined by her treating physician, Dr. David Gelber — a neurologist at the Southern Illinois University School of Medicine. Dr. Gelber determined that Miller had approximately 20/800 vision; thus, in the words of Dr. Gelber, she was "essentially blind in both eyes." Dr. Gelber also believed Miller's blindness was permanent.
In the Fall of 1993, Miller expressed an interest in returning to work at the Graham Correctional Center. On March 16, 1994, Miller met with Kenneth P. Dobucki — Warden of the Graham Correctional Center — to discuss the possibility of returning to work at the DOC. After listening to Miller's suggestions, Warden Dobucki expressed concerns about a severely visually impaired individual working in the DOC and stated that he would have to discuss the matter with Central Management.
On March 31, 1994, Miller received a letter from Warden Dobucki notifying her that her request to return to a correctional officer position was denied. Warden Dobucki indicated that a visually impaired correctional officer would pose a threat to the safety and security of the facility. Warden Dobucki noted further that due to her visual impairment, Miller could not perform a substantial or significant portion of her regularly assigned duties as a correctional officer; thus, she was terminated effective April 15, 1994.
In May of 1994, Miller filed a contract grievance with the State of Illinois Department of Central Management Services. The hearing officer found that no contract violation had occurred. That issue is now on its fourth and final appeal.
In August of 1995, Miller initiated the instant case alleging that the DOC violated the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., by refusing to allow her to return to work as a correctional officer.
II. Legal Standard — Summary Judgment
Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir.1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The Americans with Disabilities Act ("ADA") prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
Accordingly, in order to recover under the ADA, the plaintiff must establish three general elements: (1) that he is disabled within the meaning of the ADA; (2) that he is qualified, i.e., he is able to perform the essential functions of the job with or without accommodation; and (3) that the employer terminated him because of the disability. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995).
A. A Disabled Individual
Regarding the first element, an individual is "disabled" if he has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A).
Here, Miller essentially is blind in both eyes.
B. A Qualified Individual
Next, Miller must establish that she is a "qualified individual." To review, in order to be considered a "qualified individual," Miller must show that she can perform the essential functions of the position at issue with or without reasonable accommodation. The position at issue here is that of a correctional officer in the DOC. Accordingly, the next step in the Court's analysis is to determine: (1) the essential functions of the correctional officer position and (2) whether Miller can perform those functions with or without reasonable accommodation.
The "essential functions" are the "fundamental job duties of the employment position" in question. 29 C.F.R. § 1630.2(n)(1). In determining what functions are essential, the Court may consider, among other things:
29 C.F.R. § 1630.2(n)(3).
In general, the DOC asserts that a correctional officer must be able to perform a variety of duties, most involving security measures focusing primarily on assignments associated with the supervision and surveillance of inmates. Thus, according to the DOC, an essential function of the correctional officer position is the ability to perform numerous tasks, which primarily involve the supervision and surveillance of inmates. Since a blind individual obviously cannot perform most of those duties, the DOC claims that it did not violate the ADA by terminating Miller.
Miller does not dispute that she cannot perform the vast majority of the duties of a correctional officer, with or without a reasonable accommodation. Miller claims, however, that she can perform the duties associated with the switchboard (telephone) and armory with a reasonable accommodation; thus, she seeks a permanent assignment to either or both of those positions. Miller claims further that the DOC cannot argue that an essential function of the correctional officer position is the ability to perform numerous duties.
The Court agrees with the DOC.
As explained below, it appears clear to the Court that an essential function of the correctional officer position is the ability to perform a wide range of duties, most involving the supervision and surveillance of inmates. As will also be explained below, the Court finds Miller's position is not supported by the case law interpreting the ADA.
1. Essential Function of the Correctional Officer Position
First, as noted above, the DOC — the employer — believes that a correctional officer must be able to fulfill numerous roles within the DOC, most involving the supervision and surveillance of inmates. Thus, it is the professional judgment of the DOC that an essential function of the correctional officer position is the ability to fill numerous roles within the facility.
Second, the DOC submits a written job description of the correctional officer position effective since June 1, 1992. The job description identifies the correctional officer's various duties — most involving the supervision and surveillance of inmates — and approximates the time expended on each particular duty as follows:
Correctional Officer Duties % Of Time1. Stands guard in housing units, work and program area. Insures proper sanitation and cleanliness; sees that inmates are fed and clothed, properly supervised, and that inmates are properly dispatched from housing units and work/program areas. Insures that any inmate requesting medical attention is sent to the proper facility. Keeps perpetual count on inmates assigned. 40% 2. Inspects quarters, facilities, and work locations for unauthorized contraband; checks sanitary conditions, fire, and safety hazards, makes reports on irregularities. 15% 3. Escorts individuals or groups of inmates to work or program assignments; supervises institutional inmate lines such as yard, meals, church, commissary, etc. 10% 4. May be in charge of visiting rooms, armory, telephone, yard; guard on gates, towers, segregation, hospital, and other posts as assigned; searches inmates; may search visitors. 10%
Correctional Officer Duties % Of Time5. Shakes down inmates for contraband. Must be familiar with all institutional rules and regulations. Is trained and has the ability to handle institutional firearms. 10% 6. May supervise inmates on interinstitutional transfers and to courts, being responsible for safe arrival and/or return. 5% 7. Searches for escapees. Is on call 24 hours a day during any emergency situations such as riots, escapes, other officer absenteeism, etc. 5% 8. Performs other duties as required or assigned which are reasonably within the scope of duties enumerated above. May serve as a member of the Internal Audit Team. 5%
Accordingly, as evidenced by the job description, a correctional officer is expected to have the ability to perform numerous roles within the facility, most involving the supervision and surveillance of inmates — further support for the DOC's argument that the ability to perform the various duties is an essential function of the correctional officer position.
Third, it appears that the collective bargaining agreement ("Agreement") between the DOC and the union recognizes that a correctional officer must be able to fulfill a variety of duties. The Agreement does not address the issue directly, but it appears to the Court that the Agreement implicitly recognizes the various roles a correctional officer must be able to fill. As noted above, Miller wants the DOC to assign her permanently to the switchboard and/or armory. See Correctional Officer Duties Job Description ¶ 4, supra. Miller believes that she can perform those duties with reasonable accommodations. As Miller concedes, however, the consent of the union is necessary to assign a correctional officer to a permanent duty such as the switchboard and/or armory. Accordingly, since — as Miller concedes — the Agreement would be violated if the DOC created a permanent position by isolating any one duty, the Agreement implicitly recognizes that a correctional officer must be able to perform all of the duties. Once again, additional evidence in support of the DOC's argument that the ability to perform the numerous duties is an essential function of the correctional officer position.
Fourth, prior to Miller's disability, she performed many of the duties listed in the job description. In the words of Miller, she was "assigned to a wide variety of duties," including assignments pertaining to housing units, parameter duty, tower duty, tours, the nursing station, the front desk, the switchboard, and the armory. Thus, based on Miller's testimony, it appears the ability to perform the numerous duties is indeed an essential function of the correctional officer position.
In summary, the professional judgment of the DOC, the written job description, the collective bargaining agreement by implication, and Miller's own testimony regarding her prior work experience support the DOC's argument that the ability to perform a wide variety of tasks — most involving the supervision and surveillance of inmates — is an essential function of the correctional officer position. Since Miller does not have the ability to perform — with or without reasonable accommodation — the vast majority of those tasks (i.e., she does not have the ability to perform the essential function of the position), she has not established that she is a qualified individual for purposes of the ADA.
2. Miller's Position
Miller offers a couple of arguments in her attempt to rebut the DOC's argument that the ability to perform the numerous tasks is an essential function of the correctional officer position — none of which we find persuasive.
First, she claims that there is at least one correctional officer who is disabled and does not have the ability to perform many of the tasks associated with the correctional officer position. She identifies that person as Lieutenant Richard Thompson.
At first glance, Miller's argument appears meritorious. That is, if an employer is willing to make concessions — by not terminating an individual who lacks the ability to perform the variety of tasks associated with the correctional officer position — for one disabled employee, perhaps the employer
Based on subsequent evidence submitted to the Court, it appears that Lieutenant Thompson was never disabled as that term is utilized for ADA purposes. Rather, unlike Miller, he was temporarily injured on a couple of occasions for short periods of time. Miller's condition, on the other hand, is expected to be permanent. While Lieutenant Thompson was injured, his duties were indeed limited, i.e., he did not have the ability to perform all of the duties of a correctional officer. As Miller concedes, though, Lieutenant Thompson has recovered fully and it appears that he now has the ability to fulfill all of his duties.
Second, Miller argues that the DOC essentially creates permanent positions by continuously assigning the same individuals to the same duties. Thus, because individuals are assigned to the same duties over and over again, Miller claims that the DOC cannot argue that an essential function of the correctional officer position is the ability to perform the variety of duties listed above.
That argument is a red herring. Noticeably missing from Miller's argument is the suggestion that the individuals who receive the so-called "permanent" assignments lack the ability to perform the correctional officer's other listed duties.
C. Related Issues
Miller offers several related arguments that the Court would like to address.
First, Miller claims that she can perform all of the responsibilities of a correctional officer assigned to the switchboard and/or armory with reasonable accommodation. As already noted, however, there are no permanent positions within the DOC for a switchboard operator and/or armory supervisor. Rather, as evidenced by the correctional officer job description, duties associated with the switchboard and armory are merely part of the larger correctional officer position that every correctional officer must have the ability to perform.
Accordingly, it appears Miller is asking the DOC either to restructure the current correctional officer position by eliminating its essential function pertaining to the ability to perform all of the listed duties (which primarily include the supervision of inmates) or to create a new position for her — a position where she would be required to work only at the switchboard and/or armory.
It is also equally clear that the ADA does not require the employer to reasonably accommodate the disabled employee by creating a new position. White, 45 F.3d at 362; Rucker, 1995 WL 464312, *3, LEXIS 11104 at *7 ("[T]he ADA does not mandate that the employer create a `light duty' or new permanent position."); Fussell v. Georgia Ports Authority, 906 F.Supp. 1561, 1573 (S.D.Ga. 1995) ("The [defendant] simply was not required to create a special, `unarmed police officer' position within the Savannah port complex...."). Thus, Miller's argument is untenable under the provisions of the ADA.
Second, Miller claims that the DOC refused to consider her for other positions within the DOC. If the employee cannot perform the essential functions of her current position with a reasonable accommodation, reassignment to another vacant position may be considered as a reasonable accommodation. 29 C.F.R. § 1630.2(o)(2)(ii); Riley v. Weyerhaeuser Paper Co., 898 F.Supp. 324, 327 (W.D.N.C.1995). Since, however, "the ADA does not impose upon an employer the affirmative duty to find another job for an employee who is no longer qualified for the job he or she was doing," Marschand v. Norfolk & Western Ry. Co., 876 F.Supp. 1528, 1542 (N.D.Ind.1995), Miller bears the burden of producing evidence sufficient to establish that accommodation by reassignment was possible. White, 45 F.3d at 362-63; Haysman, 893 F.Supp. at 1105 ("Because the plaintiff has the burden of making a prima facie case, he must identify a specific accommodation, in this instance, a specific position which was available and which he could perform."); Lawrence v. IBP, Inc., No. 94-2027, 1995 WL 261144, *7, LEXIS 6118, *19 (D.C.Kan. April 21, 1995) ("Plaintiff has the initial burden of producing evidence sufficient to make a facial showing that accommodation by reassignment was possible.")
Accordingly, in order to show that the DOC failed to accommodate her by not offering her another position, Miller must: (1) identify another position; (2) establish that she was qualified for that position, i.e., that she could perform the essential functions of the position with or without reasonable accommodation; and (3) since the ADA does not require that an employer bump other employees or assign an individual to an occupied position, produce evidence that the position was vacant.
Here, Miller's argument falls on all three elements. Indeed, Miller has not identified one position that she could have been reassigned to within the DOC. In her affidavit, Miller states that she offered to fill "some administrative or other role within the facility." But, for some reason, she fails to identify any such positions. And, of course, since she failed to identify any such positions, Miller obviously has not satisfied her burden of establishing that she was qualified for the positions (i.e., that she could perform the essential functions of the positions with or without reasonable accommodation) and, more importantly, that any vacancies existed.
Thus, Miller's allegation that she could perform other jobs within the DOC is merely conclusory. It will not suffice to establish that she was a qualified individual with respect to other jobs and that the DOC failed to reasonably accommodate her by not reassigning her to such positions within the DOC. White, 45 F.3d at 362-63; Marschand, 876 F.Supp. at 1543 (Plaintiff "has offered nothing beyond his own subjective opinion that he could perform various other jobs at [the Railroad].
Third, Miller claims other disabled individuals are employed by the DOC. She identifies a cook who is totally blind in one eye, a nurse who suffers from multiple sclerosis and uses support cranes to maneuver, and an anonymous individual who also uses support cranes to maneuver (although that position is not identified).
The Court fails to envision how such an allegation is relevant to the Court's inquiry, nor does Miller offer such an explanation. The primary issue before the Court is whether Miller can perform the essential functions of the correctional officer position, with or without reasonable accommodation. Whether other individuals who suffer from different disabilities can perform the essential functions of different jobs has no bearing on whether Miller can perform the essential functions of a correctional officer position, with or without reasonable accommodation.
Finally, Miller claims that the union was willing to waive certain contractual requirements so that she could maintain a permanent position at the switchboard and/or armory. As already discussed, however, the ADA does not require that the employer create new positions or restructure current positions by eliminating the essential functions of the position. As also noted, the switchboard and armory duties are merely a small part of the larger duties that a correctional officer must have the ability to perform. There is no position within the DOC for a permanent job at the switchboard or armory. Thus, if the DOC is not willing to create a permanent switchboard or armory position — and since the ADA does not require the creation of such a permanent position — the Court concludes that the union's willingness to waive pertinent contract requirements regarding the creation of such a position is irrelevant.
A tragic story.
The Court is certainly sympathetic to Miller's plight.
Unfortunately, it does not appear that the ADA provides her with any relief in the instant scenario.
Based on the undisputed factual evidence — including Miller's own testimony — it appears a correctional officer must have the ability to perform a wide range of tasks, most involving the supervision and surveillance of inmates.
Thus, the ability to perform those tasks is an essential function of the correctional officer position.
Accordingly, for ADA purposes, she is not a qualified individual with respect to the correctional officer position.
Therefore, the ADA was not violated when the DOC terminated her employment.
Ergo, the DOC's motion for summary judgment is ALLOWED.