Keever v. City of Middletown

• Decision Date: 29 May 1998
• Docket Number: No. 97-3078,97-3078
• Citation: 145 F.3d 809
• Parties: 8 A.D. Cases 388 Richard T. KEEVER, Plaintiff-Appellant, v. CITY OF MIDDLETOWN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 809

145 F.3d 809

8 A.D. Cases 388

Richard T. KEEVER, Plaintiff-Appellant, v. CITY OF MIDDLETOWN, Defendant-Appellee.

No. 97-3078.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 27, 1998.

Decided May 29, 1998.

Donald B. Hordes (argued and briefed), Schwartz, Manes & Ruby, Cincinnati, OH, for Plaintiff-Appellant.

Leslie S. Landen (briefed), Middletown, OH, Robert J. Gehring (argued and briefed), Law Firm of Robert J. Gehring, Cincinnati, OH, for Defendant-Appellee.

Before: WELLFORD, RYAN, and SILER, Circuit Judges.

OPINION

WELLFORD, Circuit Judge.

Plaintiff Richard T. "Tim" Keever was a police officer with the City of Middletown ("City"), and suffered on-the-job-injuries to his neck, shoulders, back, and legs in the late 1980's. In the years following his injuries, he missed an excessive amount of work, and disputes arose about the legitimacy of his absences. In November of 1993, as part of an agreement with the City, just before arbitration on a grievance, Keever resigned from the force and filed for disability benefits, receiving a 45% permanent disability retirement. In August of 1995, Keever filed this action against the City under the Americans with Disabilities Act ("ADA"), 29 U.S.C. § 12101, et seq., and the Ohio discrimination statutes, claiming that the City failed to accommodate his disability, unlawfully harassed him about his disability, and constructively discharged him from the force. The magistrate judge granted summary judgment in favor of the City, finding, among other things, that Keever was not "otherwise qualified" for the position sought and Keever now appeals. ¹ We AFFIRM for the reasons indicated.

Keever was employed by the City of Middletown Police Department ("MPD") as a uniformed police officer for some fifteen years. Except for his sporadic attendance problems, Keever received average to above average performance ratings, and was cited on occasion for bravery on duty.

On several occasions during the mid-1980's, Keever suffered on-the-job injuries while subduing criminal suspects. Keever still claims to suffer from effects of those injuries. Stress, both work-related and otherwise, exacerbates his physical problems, causing depression and pain. Keever also suffers from periodic headaches and from side effects related to medications he takes. He also has experienced domestic problems for some time.

Over many years, Keever was absent from work between 17 and 26 days per year because of his injuries. During the first three quarters of 1993, the period in question, Keever worked 121 days and was absent about 32 days. The parties disagreed about whether Keever could use his injury leave for his absences or whether he had to exhaust his sick leave. ² Keever, along with his union representative, Magill, filed a grievance protesting the City's handling of Keever's sick leave. Keever states that the confrontation caused by the grievance contributed to the gradual deterioration in his relationship with his superiors. ³ Through a settlement agreement, Keever retired in November of 1993, claiming to be disabled, in exchange for restoration of his sick leave hours which he was allowed to redeem for about $4,600. Keever then applied for and received disability retirement benefits from the Ohio Police Pension and Disability Fund. In support of his application, Keever and his health care providers certified that Keever was permanently and partially disabled. The fund gave Keever a 45% disability retirement. Keever has made no offer to return the benefits received in the settlement agreement.

After following administrative procedures, Keever filed suit, claiming that his alleged forced retirement constituted an unlawful constructive discharge, in violation of the ADA and the corresponding Ohio disability discrimination statutes. See OHIO REV.CODE §§ 4112.02 and 4112.99. He claimed that he was harassed because of his disability and because of his disability-related absences from work. In addition, Keever claims that the department refused to accommodate his disability by not allowing him to work on the 11:00 p.m.-to-7:00 a.m. shift, which he claims is less stressful, or by not transferring him to a detective position, which he claims is also less stressful. ⁴

In July of 1996, the City filed a motion for summary judgment. In December of 1996, the magistrate judge entered an order granting the City's motion, concluding:

1. Keever was not "otherwise qualified" for the position, having rejected a reasonable accommodation which would enable him to perform the essential functions of his job;

2. Keever's representation of disability to his pension fund precluded him from establishing that he was "otherwise qualified;"

3. Keever was not constructively discharged, because the City took no adverse action against him; and

4. The evidence fails to establish any hostile environment claim.

We review a district court's grant of summary judgment de novo. City Management Corp. v. U.S. Chem. Co., 43 F.3d 244, 250 (6th Cir.1994). In doing so, we must view the evidence and all inferences to be drawn therefrom in a light most favorable to the nonmoving party. Id.; Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 882 (6th Cir.1996). Summary judgment is appropriate where there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In accordance with this standard, we have stated the factual background in a light most favorable to Keever.

A plaintiff sets out a prima facie case of disability discrimination if he proves that he is a "qualified individual with a disability," which 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); see Kocsis, 97 F.3d at 882. The issue here is whether Keever was "otherwise qualified" to perform the essential functions of his position with reasonable accommodation. ⁵ Estate of Mauro ex rel. Mauro v. Borgess Medical Center, 137 F.3d 398, 402-03 (6th Cir.1998) (discussing the "otherwise qualified" requirement); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183-84 (6th Cir.1996) (same).

The magistrate judge found that Keever was disabled within the meaning of the Act, but that he was not "otherwise qualified" because he rejected a reasonable accommodation offered by the City that would have enabled him adequately to perform the duties of an officer. Specifically, the City offered to let Keever work the desk job in the department, because the reduced activity might reduce his stress and physical symptoms so that his attendance would improve. The City hoped that this proposed accommodation would have allowed Keever to maintain the same pay and benefits, and his seniority would not have been affected.

Keever, however, did not want to work the desk job, "because it was used as a punishment tool. Another thing is, [he] was wanting to be a police officer out on the street, not inside." Keever thought also that the desk job carried with it less prestige, and he suggested other accommodations that would suit him. First, he asked to do detective work, or second, he suggested that he could be placed on what he claimed was a less stressful 11:00 p.m.-to-7:00 a.m. shift, rather than the day shift to which he was assigned. Keever also maintained that he should have been able to choose which shift he preferred because of his seniority. The City rejected Keever's requests. According to his supervisor, Bruck, Keever was looking for a position "where he didn't have to come to work every day," and because his attendance was so erratic, Bruck did not think that the detective position was suitable. The City's policy was to have set shifts for its employees.

The district court found that the City's offer of a desk position constituted a reasonable accommodation for Keever's disability. Under the ADA regulations, the employer has the ultimate discretion to choose between effective accommodations. See 29 C.F.R. pt. 1630, app. at 415. It is well-settled that "an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided." Hankins v. The Gap, 84 F.3d 797, 800-01 (6th Cir.1996) (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68-69, 107 S.Ct. 367, 371-72, 93 L.Ed.2d 305 (1986)). The regulations also provide that if an employee rejects the offered reasonable accommodation "that is necessary to enable the individual to perform the essential functions of the position ... the individual will not be considered a qualified individual with a disability." Id. at 801 (citing 29 C.F.R. § 1630.9(d)). Keever maintains that the City's offer to provide him with a desk job was not a reasonable accommodation.

As indicated above, Keever maintains that the desk job was not a reasonable accommodation for his disability because he believed that the position involved significantly diminished material responsibilities and that it was demeaning. He was...