Kees v. Wallenstein

• Decision Date: 14 May 1997
• Docket Number: No. C96-643WD.,C96-643WD.
• Citation: 973 F.Supp. 1191
• Parties: Reginald L. KEES, et al., Plaintiffs, v. Arthur WALLENSTEIN, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

973 F.Supp. 1191

Reginald L. KEES, et al., Plaintiffs, v. Arthur WALLENSTEIN, et al., Defendants.

No. C96-643WD.

United States District Court, W.D. Washington.

May 14, 1997.

Sidney J. Strong, Kimberly A. Konat, Strong & Konat, Seattle, WA, for plaintiffs.

Philip Anthony Tompson, Donald W. Heyrich, Diane Hess Taylor, King County Prosecuting Atty's Office, Seattle, WA, for defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

DWYER, District Judge.

OVERVIEW

Plaintiffs are former corrections officers from the King County jail. Each plaintiff was separated from his position because, due to injury or other physical infirmity, he could not have direct contact with inmates. Plaintiffs have sued King County and various individual defendants under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., the Washington Law Against Discrimination (WLAD), R.C.W. 49.60, 42 U.S.C. § 1983, and state common law. Defendants have moved for summary judgment on all claims. Plaintiffs have moved for summary judgment on their ADA and WLAD claims. Only defendants have requested oral argument. The motions have been thoroughly briefed and oral argument is not necessary.

BACKGROUND

Robert Niece, Joseph McCreary, Reginald Kees and John Standley were employed as corrections officers at King County jail. Each suffered either an injury or other medical problem that prevented him from having direct contact with inmates. As a result, each was given a light duty "assignment" to a control room post.¹

Arthur Wallenstein became Director of the King County Department of Adult Corrections ("DAD") in August 1990. Soon thereafter, it came to his attention that a number of officers had been on light duty for extended periods of time. Wallenstein viewed this as a problem for a number of reasons, and took steps to rectify it. He sought the guidance of the County's Office of Human Resource Management (OHRM) on the DAD's legal obligations.

The OHRM requested that the DAD, and other departments struggling with similar issues, forward lists of long-term light-duty employees. After obtaining the lists, the OHRM's job accommodation coordinator, Pamela Dowling, sent each listed employee a copy of the applicable job description and a list of its physical requirements, along with an evaluation to be filled out by the employee's doctor. When the results were in, Dowling determined whether the employee's condition was permanent, and if so, whether a reasonable accommodation could be made that would permit the employee to perform the essential functions of the job. If not, she attempted to reassign the employee to another County position through the County's Employment Placement Services program.

As to plaintiffs, it was found that their conditions were permanent and that no accommodation would permit them to have contact with inmates. Dowling determined the latter function to be essential to a corrections officer's job. Plaintiffs were relieved of their positions as corrections officers, and Dowling tried to place them in different county positions. These attempts were unsuccessful. Kees, McCreary, and Niece were terminated as King County employees in April 1996. Standley resigned in January 1997.

In April 1995, plaintiffs' union, Public Safety Employees, Local 519, filed a grievance on their behalf. In June 1996, the County made a settlement offer. Each plaintiff was offered a DAD non-commissioned, support position such as office technician, jail receptionist, or jail aide, at his full corrections officer salary. Plaintiffs rejected the offer.

Plaintiffs filed this suit against King County and several individual defendants, alleging violations of the ADA, WLAD, and intentional and negligent infliction of emotional distress. Plaintiffs have also raised claims against Director Wallenstein under 42 U.S.C. § 1983. Plaintiffs seek, among other things, reinstatement to their corrections officers positions with one "accommodation" — permanent assignment to the control room.

The defendants (collectively "the County") have moved for summary judgment on all claims. With regard to the ADA and WLAD claims, the County argues that it is entitled to summary judgment because plaintiffs' medical conditions prevent them from performing the essential functions of the job with or without accommodation. Because the 1983 claim is predicated on the alleged ADA violations, Wallenstein argues that he is entitled to summary judgment on it as well. Finally, the County argues that the plaintiffs cannot make out prima facie cases for either negligent or intentional infliction of emotional distress. Plaintiffs have filed a cross-motion for partial summary judgment on their ADA and WLAD claims.

DISCUSSION

I. The County's Motion for Summary Judgment

Summary judgment under Fed.R.Civ.P. 56 may be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. An issue of material fact is one that affects the outcome of the case and requires a trial to resolve differing versions of the truth. Admiralty Fund v. Hugh Johnson & Co., 677 F.2d 1301, 1305-06 (9th Cir.1982). In deciding the motion, the court views the evidence in the light most favorable to the non-moving party, and draws all reasonable inferences in that party's favor. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir.1987). However, the non-moving party must respond to an adequately supported motion by showing that a genuine issue of material fact exists; if the response falls short of that, summary judgment should be granted. Fed. R. Civ. Proc. 56(e); T.W. Elec. Serv., Inc., 809 F.2d at 630-31.

A. The ADA and WLAD Claims

To prevail on an employment discrimination claim under the ADA, or the WLAD, a plaintiff must establish:

(1) that he is disabled within the meaning of the ADA;

(2) that he is qualified, that is, able to perform the essential functions of the job with or without reasonable accommodation; and

(3) that the employer terminated him because of his disability.

Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (1996).²

Plaintiffs cannot work in any position that requires them to have direct contact with inmates, and admit that there is no accommodation that would permit them to do so. See Kees Dep. at 51; McCreary Dep. at 7; Niece Dep. at 40; Standley Dep. at 13. The County argues that it is entitled to summary judgment because a corrections officer must be able to have direct physical contact with inmates in order to perform the essential functions of a corrections officer at the King County jail.

1. Is the ability to have direct inmate contact an essential job function?

The Seventh Circuit, and several district courts, have held that the ability to perform a wide range of duties — most of which involve direct inmate contact — is an essential function of a corrections officer position. See Miller v. Dept. of Corrections of the State of Illinois, 107 F.3d 483, 485 (7th Cir.1997); Johnson v. State of Maryland, 940 F.Supp. 873, 878 (D.Md.1996); McDonald v. State of Ks., Dept. of Corrections, 880 F.Supp. 1416, 1423 (D.Kan.1995); see also, e.g., Champ v. Baltimore County, 884 F.Supp. 991, 998 (D.Md.1995) (ability to make forcible arrest, qualify with a weapon, and drive emergency vehicles essential functions of all Baltimore County police officer positions). The Seventh Circuit found the reason for this to be "obvious enough":

In the case of correctional officers and other paramilitary and military personnel, the reason for having multiple able workers who rotate through the different duty positions is to be able to respond to unexpected surges in the demand for particular abilities. The prison has to be able to call upon its full staff of correctional officers for help in putting down a prison riot, and therefore each officer must have experience in the positions, such as searching and escorting inmates, that provide the necessary training and experience for responding effectively to a riot, as well as the capability for such a response.

Miller, 107 F.3d at 485.

The "essential function" question, however, is one of fact, not law. See 29 C.F.R. § 1630.2(n), App. A; see Sharp v. Abate, 887 F.Supp. 695, 698 (S.D.N.Y.1995) (finding genuine issue of fact as to whether supervision of inmates an essential job function at a particular facility). Thus, while the cases on point are instructive, they are not dispositive. In order to prevail on its motion the County must establish that there is no genuine issue as to whether the ability to perform duties requiring direct inmate contact is an essential function of a corrections officer at the King County jail.

The "essential functions" of a position are "the fundamental job duties of the position." 29 C.F.R. § 1630.2(n). In determining which functions are essential, the court may look at, among other things: (1) the employer's judgment as to which functions are essential; (2) written job descriptions; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the individual to perform the function; (5) the terms of the collective bargaining agreement; and (6) the work experience of past incumbents in the job and/or the work experience of current incumbents in similar jobs. 29 C.F.R. § 1630(n)(3).

These factors support the conclusion that the ability to handle inmates is an essential function of a corrections officer at the King County jail. For instance, the County has submitted numerous written job descriptions. The oldest, from 1976, provides that King County corrections officers "rotate shifts, with varying days off, and are expected to be able to perform the functions and duties of all shifts in all required areas of the jails." McCreary ...