91 F.3d 836 (6th Cir. 1996), 95-3227, Burns v. City of Columbus, Dept. of Public Safety, Div. of Police

Docket Nº:95-3227.
Citation:91 F.3d 836
Party Name:Dana W. BURNS, Plaintiff-Appellant, v. CITY OF COLUMBUS, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF POLICE, Defendant-Appellee.
Case Date:August 07, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 836

91 F.3d 836 (6th Cir. 1996)

Dana W. BURNS, Plaintiff-Appellant,

v.

CITY OF COLUMBUS, DEPARTMENT OF PUBLIC SAFETY, DIVISION OF

POLICE, Defendant-Appellee.

No. 95-3227.

United States Court of Appeals, Sixth Circuit

August 7, 1996

Argued March 21, 1996.

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[Copyrighted Material Omitted]

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Mark S. Coco (argued and briefed), Harris, McClellan, Bianau & Cox, Columbus, OH, for Dana W. Burns.

Stephanie Mitchell Hughes (argued and briefed), Columbus City Attorney's Office, Civil Div., Columbus, OH, for City of Columbus, Dept. of Public Safety, Div. of Police.

Before: MARTIN and MOORE, Circuit Judges, and JOINER, District Judge. [*]

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BOYCE F. MARTIN, Jr., Circuit Judge.

Under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and Ohio Rev.Code § 4112.02, Dana Burns alleges that he was unlawfully terminated from the Columbus, Ohio, police force solely because he was handicapped with a condition known as "reflex sympathetic dystrophy" 1 in his right arm incurred due to a neck injury he received at the Police Training Academy. We conclude that Burns has failed to establish an element of his prima facie case and also has not carried his burden of proof to show that the City's nondiscriminatory reasons for terminating him were pretextual. Accordingly, we affirm the district court's decision granting the City's motion for summary judgment.

Dana Burns was selected for the Columbus police department's 80th recruit class on September 16, 1991. As part of his Police Training Academy activities in November of 1991, Burns was engaged in a wrestling match during which he was thrown on a mat and lost consciousness. He regained consciousness and finished, but was soon taken to a hospital where he was diagnosed with a concussion and neck injury. Burns missed one day of training because of the injury, but later completed this training as required. He graduated from the Academy in February of 1992.

In mid-February, Burns began his "field training" which consists of working "on the street" with a training officer. Although field training usually includes one five-week session and a second four-week session, trainees who perform unsatisfactorily may be required to complete a third session. Burns was required to participate in three field training sessions with a different supervising officer each session. His final field training supervisor, David Ralls, recommended that, despite Burns's inconsistent performance, he should be retained by the department. In Ralls's deposition, however, he indicated that Burns's performance was unsatisfactory, that he displayed poor judgment, and that he threatened Ralls's safety on two occasions. For example, in response to a report about a man with a gun on a playground, Burns drove past a man perfectly fitting the report's description. When Ralls asked if Burns saw the man, Burns said that he intended to approach the man from the front, an unsafe approach in Ralls's eyes. Moreover, when Ralls and Burns were stopping a car full of passengers in a neighborhood notorious for drug dealing, Burns allowed a passenger to leave the scene without following police procedure. Ralls claimed that Burns's lack of control over the situation threatened Ralls's safety. Thus, even during his third field training session, Burns's performance was problematic.

In addition, during Burns's period of field training, two citizens complained about Burns's off-duty conduct. The first complaint came from a woman who alleged that Burns cut her off while driving. After she angrily gestured at Burns, Burns allegedly held up his police hat. In response to the woman's complaint, a police sergeant warned Burns that his behavior was unacceptable. A second incident involved a dispute between Burns and a car salesman. The salesman complained that after he told Burns that the car he had ordered would arrive later than expected, Burns angrily told the salesman that "if I weren't a police officer I would kick [your] ass." Burns received a minor reprimand for this incident.

In May of 1992, after Burns completed his field training, the seven-member Field Training Officers Board reviewed Burns's performance and decided to recommend termination of his employment. In its recommendation to the Chief of Police, the Board cited Burns's weaknesses during all three field training periods, indicating an "inability to perform the basic duties of a police officer," as well as the two off-duty incidents which the Board interpreted as a "tendency to abuse police power." The Board's recommendation was unanimous. Included in the record are the affidavits of three Board members who state that they were unaware

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of Burns's neck injury when they voted to terminate his employment. None of the Board members was aware of Burns's reflex sympathetic dystrophy because he had not yet been diagnosed with the condition. After being informed of the Board's recommendation and after being temporarily assigned to a civilian position pending review of that decision, Burns left his new post within a couple of hours and never returned to work. On July 1, 1992, the Safety Director of the City, Ronald Poole, terminated Burns for unsatisfactory performance during his probationary period based on the Board's recommendation.

Burns stated in his deposition that when he returned to Academy training after his injury he never told his training officers that his doctor had instructed him to stay at home. He stated that he could function as an officer through the end of his training program. Although he claims to have complained about pain in his arm, and missed a day of boxing while in the hospital, he admits disregarding his doctor's advice not to box in order to avoid repeating the class. Burns also acknowledged that his condition had not been diagnosed at the time the Board recommended termination. Burns's reflex sympathetic dystrophy was diagnosed after June 30, 1992, when he came under the care of Albert L. Beraducci, Jr., M.D. 2

On May 25, 1993, Burns filed suit in federal district court seeking redress under the federal Rehabilitation Act and Section 4112.02 of the Ohio Revised Code, alleging that the City terminated him because he was handicapped with a neck injury that developed into reflex sympathetic dystrophy. The City moved for summary judgment and the district court granted the motion on January 31, 1995. The district court reasoned that the record contained not a scintilla of evidence that Burns was handicapped 3 as defined by the Act at the time of his termination because his neck injury did not limit one or more of Burns's major life activities. 4 The court further found that Burns had not presented evidence to create a factual dispute as to whether he was otherwise qualified for the job or that the City's reasons for terminating him were a pretext. We review a district court's decision to grant summary judgment de novo. Rowley v. United States, 76 F.3d 796, 799 (6th Cir.1996).

The federal statute at issue here, the Rehabilitation Act of 1973, provides in pertinent part that

[n]o otherwise qualified individual with a disability in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....

29 U.S.C. § 794 (1988 & Supp. IV 1992). In Doherty v. Southern College of Optometry, this Court outlined the elements of a cause of action under the Rehabilitation Act. 862 F.2d 570 (6th Cir.1988), cert. denied, 493 U.S. 810,

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110 S.Ct. 53, 107 L.Ed.2d 22 (1989). To prevail in a Rehabilitation Act case, the plaintiff ultimately must prove (1) that he or she is a "handicapped person" under the Act; (2) that he or she is "otherwise qualified"; 5 (3) that he or she is being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely because of his or her handicap; and (4) that the program or activity receives federal funds. Id. at 573.

Although these are the elements of a Rehabilitation Act "claim," the particular and characteristic factual disputes plaintiffs have raised in Rehabilitation Act cases have led courts to categorize these claims into several types. Smith v. Barton, 914 F.2d 1330, 1339 (9th Cir.1990) (observing that commentators have identified four types of handicap discrimination claims), cert. denied, 501 U.S. 1217, 111 S.Ct. 2825, 115 L.Ed.2d 995 (1991); Prewitt v. United States Postal Serv., 662 F.2d 292, 305 n. 19 (5th Cir.1981) (same) (citing Note, Accommodating the Handicapped: The Meaning of Discrimination Under Section 504 of the Rehabilitation Act, 55 N.Y.U. L.Rev. 881, 883-84 (1980)); Barth v. Gelb, 2 F.3d 1180, 1186 (D.C.Cir.1993) (identifying three types of handicap discrimination cases), cert. denied, 511 U.S. 1030, 114 S.Ct. 1538, 128 L.Ed.2d 190 (1994); Doe v. New York Univ., 666 F.2d 761, 776 (2d Cir.1981) (identifying two types of claims); Norcross v. Sneed, 755 F.2d 113, 116 (8th Cir.1985) (accepting Doe 's description of handicap discrimination claims). As identified by the Second Circuit in Doe, the most fundamental distinction between types of handicap discrimination claims turns on whether the grantee of federal funds acknowledges or relies on the handicap in making a decision adverse to the plaintiff. Doe, 666 F.2d at 776. Where a grantee claims that the handicap was not a consideration in its decision, courts have identified this type of claim as a "straightforward handicap discrimination claim," or an "intentional discrimination for reasons of social bias" claim. Smith, 914 F.2d at 1339; Prewitt, 662 F.2d at 305 n. 19. In Title VII 6 parlance, this type of claim is sometimes called a "pretextual disparate treatment" claim. Healey...

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