Frazier v. Simmons

• Decision Date: 03 July 2001
• Docket Number: Nos. 00-3131,00-3148,s. 00-3131
• Citation: 254 F.3d 1247
• Parties: (10th Cir. 2001) STEVE E. FRAZIER, Plaintiff-Appellant and Cross-Appellee, v. CHARLES E. SIMMONS, Secretary of the Department of Corrections, Defendant-Appellee andCross-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1247

254 F.3d 1247 (10th Cir. 2001)

STEVE E. FRAZIER, Plaintiff-Appellant and Cross-Appellee, v. CHARLES E. SIMMONS, Secretary of the Department of Corrections, Defendant-Appellee andCross-Appellant.

Nos. 00-3131, 00-3148

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

July 3, 2001

Submitted on the briefs.^*

Appeal from the United States District Court for the District of Kansas (D.C. No. 96-CV-4020) [Copyrighted Material Omitted] Kirk W. Lowry, Topeka Independent Living Resource Center, Inc., Topeka, Kansas, for Plaintiff-Appellant and Cross-Appellee.

Edward F. Britton, Jr., and Lisa A. Mendoza, Special Assistant Attorneys General, Topeka, Kansas, for Defendant-Appellee and Cross-Appellant.

Before HOLLOWAY, BRORBY, and JONES,^** Circuit Judges.

BRORBY, Circuit Judge.

Mr. Frazier sued Mr. Simmons, his former employer, in his official capacity as Secretary of the Kansas Department of Corrections, for alleged violations of the Americans with Disabilities Act ("Disabilities Act"), 42 U.S.C. 12101 - 12213. The district court granted Mr. Simmons' motion for summary judgment. The district court, however, denied Mr. Simmons' motion for dismissal, holding Mr. Simmons was not immune from suit under the Eleventh Amendment. Mr. Frazier appeals the district court's grant of summary judgment; Mr. Simmons cross-appeals the denial of his motion to dismiss. Both parties have filed supplemental briefs addressing the effect of Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001) on the present suit. We have jurisdiction pursuant to 28 U.S.C. 1291. We affirm the district court's grant of summary judgment in favor of Mr. Simmons on Mr. Frazier's Title I claims, and remand the case to the district court for initial consideration of Mr. Frazier's Title II claims.

BACKGROUND

Mr. Frazier was diagnosed with multiple sclerosis in 1987. Multiple sclerosis is an incurable chronic nerve disorder. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1174 (10th Cir. 1999). Mr. Frazier's symptoms are relapsing-remitting, and include blurred and partially lost vision, tingling in his hands, a pinched nerve, and pain in his hip resulting in an inability to run, loss of balance, and walking with a limp.

From 1990 until his termination on December 28, 1994, Mr. Frazier worked as an investigator for the Kansas Department of Corrections, Legal Division, in the central office. His position was created specifically to assist Mr. Perrin, who was his supervisor and the only other investigator assigned to the central office investigations division.

In February 1994, Mr. Frazier provided the Department of Corrections, and specifically the "EEO Coordinator," with a letter from his doctor explaining that he was diagnosed with multiple sclerosis. In this letter, his doctor explained that Mr. Frazier's "symptoms have progressed to the point where it jeopardizes his ability to perform his duties at work," and recommended Mr. Frazier be placed indefinitely "on light duty or a disability classification." Mr. Simmons first learned Mr. Frazier was diagnosed with multiple sclerosis at this time, and Mr. Perrin noticed certain physical symptoms of the disease.

Shortly thereafter, Mr. Perrin told Mr. Frazier he was concerned Mr. Frazier could no longer accurately shoot or safely operate his "heavy," state-issued firearm. Mr. Frazier agreed to relinquish his firearm pending the outcome of his doctors appointments. There is, however, no evidence in the record suggesting Mr. Frazier requested or received his firearm back subsequent to his appointments.

In March 1994, Mr. Frazier briefly returned to work, but then took a second medical leave of absence. After exhausting his personal leave time, Mr. Simmons agreed to allow Mr. Frazier to participate in the shared leave plan, enabling Mr. Frazier to have an extended absence from work. While on his extended leave, Mr. Frazier wrote a letter to Ms. Rickerson, the Human Resource Director, declaring that he does "not believe [he has] or will recover enough mobility or sight in [his] right eye to return to [his] current position [as Investigator for the Department of Corrections]." However, he did request a position as Parole Officer I in Lawrence, Kansas, which was a voluntary demotion from his investigator job. Mr. Frazier applied and interviewed for the Lawrence parole officer position, but was denied the job.

In September 1994, Mr. Frazier sent another letter to Ms. Rickerson explaining that his multiple sclerosis had vastly improved, and his doctors provided him written permission to return to work. He indicated his belief he could "perform the major function" of his investigator job, and wished to return to work in early October. He requested two accommodations: stress reduction, and a temperature controlled environment.¹ Furthermore, he asked for a list of the essential functions of his job, and help "in finding a similar position in Topeka with similar wages and accommodations."

At the same time, Dr. Stein mailed a letter to Ms. Rickerson disclosing that Mr. Frazier's neurological condition had "partly improved," and opining:

[Mr. Frazier] is at risk in his particular work, which could involve physical encounters with potentially violent offenders. From a neurological point of view, it is my recommendation that he be put into a job which would be physically less demanding, would involve less walking and no running or violent activity.

In November 1994, Mr. Frazier was referred by his physician to an independent physical therapist for a functional capacity evaluation. After conducting various strength and balance tests, the physical therapist concluded:

It is this therapist['s] opinion that some of the requirements would be very difficult and/or unsafe to perform. Those include the following: prolonged standing, prolonged walking, climb, activities that require good balance, physically restrain persons in custody, lifting up to 50# (to shelf height 68" only), carry up to 50#, activities that require kneeling, crouching, restrain violent offender, assist in evacuation of an unconscious or unwilling offender and running.

Prior to his termination, Ms. Rickerson discussed with Mr. Frazier the type of accommodations he sought to enable him to perform his investigator job, as well as his other skills so she could identify available positions for him within the Department of Corrections. Ms. Rickerson then reviewed the vacancies, but did not consider "law enforcement" positions because, according to her, Mr. Frazier had indicated he could not perform that type of work, and she believed his physicians prohibited him from performing the essential functions of those jobs. She also did not consider reassigning him to clerical, management, technical, or professional positions because she did not believe Mr. Frazier had the requisite skills for those positions.

On December 12, 1994, ten days after receiving the results of the physical therapist's evaluation, Mr. Simmons informed Mr. Frazier he was being terminated, pending a final decision by the state Civil Service Board. Mr. Simmons proposed the termination because he believed Mr. Frazier was unable to perform the duties of an investigator and Mr. Frazier's physicians indicated there was a risk of physical harm or injury if he continued to work as an investigator. Mr. Frazier again requested the Department of Corrections to restructure his job or reassign him to a vacant position.

Following his termination, Mr. Frazier sued Mr. Simmons, in his official capacity, for violation of the Disabilities Act. In his complaint, Mr. Frazier sought money damages and "such other relief as the Court deems just and equitable." Mr. Simmons moved the district court for dismissal based on Eleventh Amendment immunity, and, in the alternative, for summary judgment on the merits. The district court granted Mr. Simmons' motion for summary judgment, but denied his motion for dismissal. In granting summary judgment, the district court summarily concluded Mr. Frazier (1) failed to raise a genuine issue of material fact he is "disabled" within the meaning of the Disabilities Act, and (2) even if he could demonstrate his disability, "no rational factfinder could conclude that [Mr. Simmons] failed to reasonably accommodate [Mr. Frazier's] impairment." Mr. Frazier appeals the district court's grant of summary judgment in favor of Mr. Simmons, and Mr. Simmons cross-appeals the court's denial of his motion to dismiss on Eleventh Amendment immunity grounds.

"We review the district court's grant of summary judgment de novo, applying the same legal standard used by the district court." Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815 (1999). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed. R. Civ. P. 56(c). "When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Simms, 165 F.3d at 1326. "'[W]here the non moving party will bear the burden of proof at trial on a dispositive issue' that party must 'go beyond the pleadings' and 'designate specific facts' so as to 'make a showing sufficient to establish the existence of an element essential to that party's case' in order to survive summary judgment." McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

We also review de novo the district court's denial of Eleventh Amendment immunity. See Sturdevant v. Paulsen, 218 F.3d 1160, 1164 (10th Cir. 2000). Because Mr. Simmons' cross-appeal raises Eleventh Amendment immunity,...