Keith v. Cnty. of Oakland

• Citation: 703 F.3d 918
• Decision Date: 10 January 2013
• Docket Number: No. 11–2276.,11–2276.
• Parties: Nicholas A. KEITH, Plaintiff–Appellant, v. COUNTY OF OAKLAND, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

703 F.3d 918

Nicholas A. KEITH, Plaintiff–Appellant,

v.COUNTY OF OAKLAND, Defendant–Appellee.

No. 11–2276.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 10, 2012.

Decided and Filed: Jan. 10, 2013.

ARGUED:Donald M. Fulkerson, Westland, MI, for Appellant. John J. Lynch, Vandeveer Garzia, P.C., Troy, MI, for Appellee. ON BRIEF:Donald M. Fulkerson, Westland, MI, Joey S. Niskar, Bingham Farms, MI, for Appellant. John J. Lynch, Christian E. Hildebrandt, Vandeveer Garzia, P.C., Troy, MI, Keith J. Lerminiaux, Oakland County Corporate Counsel, Pontiac, MI, for Appellee.

Before: SUTTON, GRIFFIN, and WHITE, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Plaintiff Nicholas Keith, a deaf individual, filed the instant action alleging that defendant Oakland County discriminated against him on the basis of disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794, et seq., when it failed to hire him as a lifeguard. The district court granted Oakland County's motion for summary judgment. For the reasons that follow, we hold that genuine issues of material fact exist regarding whether Keith is otherwise qualified to be a lifeguard at Oakland County's wave pool, with or without reasonable accommodation. Accordingly, we reverse the district court's judgment and remand for further proceedings consistent with this opinion.

I.

Keith has been deaf since his birth in 1980. When wearing an external sound transmitter, he can detect noises through his cochlear implant, such as alarms, whistles, and people calling for him. Because he is unable to speak verbally, he communicates using American Sign Language (“ASL”).

In 2006, Keith enrolled in Oakland County's junior lifeguard training course. Oakland County provided an ASL interpreter to relay verbal instructions to him. The interpreter did not assist Keith in executing lifesaving tasks. Keith successfully completed the course.

In 2007, Keith enrolled in Oakland County's lifeguard training program. Candidates must pass a basic swim test to participate in the training. During training, candidates are taught how to enter the water, scan the water for distressed swimmers, execute basic saves, respond to spinal injuries, and perform CPR. With the assistance of an ASL interpreter to communicate verbal instructions, Keith successfully completed the training.

Having received his lifeguard certification, Keith applied for a lifeguard position at Oakland County's wave pool. The job announcement required applicants to be at least sixteen years old and pass Oakland County's water safety test and lifeguard training program. The application also contained the following condition of employment: “All persons hired by Oakland County must take and pass a medical examination from a county-appointed physician, at no cost to the applicant.”

Katherine Stavale is Oakland County's recreation specialist. She contacted her supervisors to ask if she could offer Keith the position. She explained that Keith had requested an ASL interpreter to be present at staff meetings and further classroom instruction. Having received no objection, Stavale extended Keith an offer of employment, conditioned upon a pre-employment physical. In an email, Stavale told Keith, “you passed training and you did a good job, so we would like to offer you a part-time position as a lifeguard.” Stavale asked him to contact her to set up a meeting to complete his paperwork and schedule his orientation sessions.

Shortly thereafter, Keith was examined by Dr. Paul Work, D.O. When Dr. Work entered the examination room, he looked at Keith's medical history and stated, “He's deaf; he can't be a lifeguard.” Keith's mother asked Dr. Work, “Are you telling me you're going to fail him because he's deaf?” Dr. Work responded, “Well, I have to. I have a house and three sons to think about. If something happens, they're not going to sue you, they're not going to sue the county, they're going to come after me.”

In his report, Dr. Work described Keith as “physically sound except for his deafness.” Dr. Work did not believe that Keith could function independently as a lifeguard, but he thought that he could be a valuable member of a team if properly integrated and monitored. Dr. Work approved Keith's employment as a lifeguard if his deafness was “ constantly accommodated.” However, he did not say whether Keith could, in fact, be safely accommodated, and he expressed doubt that accommodation would always be adequate.

Having learned the results of the physical, Stavale placed Keith's employment on hold and contacted Wayne Crokus, the client manager at Ellis & Associates. Ellis is a group of aquatic safety and risk management consultants that provides guidance to Oakland County regarding its water park facilities and lifeguard training program. Oakland County follows Ellis's methodologies to train and test candidates for its lifeguard openings, but Ellis is not directly involved in the certification and employment of Oakland County's lifeguards. Oakland County is responsible for licensing and hiring its lifeguards.

Stavale told Crokus that she had trained and hired as a lifeguard a profoundly deaf individual. In response, Crokus expressed concern about whether a deaf individual could perform effectively as a lifeguard. He suggested to Stavale that a job-task analysis be done to determine whether Keith could perform the job with or without accommodation. Crokus has a background in aquatic safety and lifeguard training, but he has no education or experience regarding the ability of deaf people to work as lifeguards, and he did not conductany research into the issue upon learning about Keith. He never communicated with Keith, never observed Keith during training, and never spoke with Dr. Work.

Stavale also corresponded with Richard Carroll, Ellis's senior vice president. Carroll suggested that Stavale find out the type of hearing device that Keith used and assess his ability to detect a distressed swimmer. He suggested that Stavale determine, under the standards used for all candidates, whether Keith could perform in the actual work environment at the level outlined in the job description, but he could not provide a definitive answer without a familiarity with Keith or the facility. Like Crokus, Carroll has no education, training, or experience regarding the ability of deaf people to work as lifeguards, and he did not research the issue. At the time of his response, Carroll had visited Oakland County's wave pool once during the off season.

After these discussions, Stavale prepared a six-page outline setting forth the accommodations that she believed could successfully integrate Keith, and she sent it to Crokus for feedback. Stavale explained:

1. Keith will carry laminated note cards in the pocket of his swim trunks to communicate with guests in non-emergency situations.

2. Keith does not need to hear to recognize and rescue a distressed swimmer; experience reveals that distressed swimmers do not cry out for help.

3. Keith will use his whistle and shake his head “no” to enforce pool rules.

4. Keith will briefly look at other lifeguards on duty when scanning his zone to see if they enter the pool for a save.

5. Because Keith cannot use the megaphone or radio, another lifeguard will have this responsibility when Keith is working.

6. Keith will not work the slide rotation, which should not be a problem because this is one of the favorite rotations and many lifeguards like to work more than one slide rotation.

7. The Emergency Action Plan (“EAP”) will be modified, regardless of whether Keith is scheduled. To initiate the EAP, lifeguards will be required to signal with a fist in the air, opening and closing it like a siren. This will accommodate Keith and improve the effectiveness of the EAP for the entire team.

Crokus questioned Stavale on several of these accommodations and remained concerned about Keith's ability to function effectively as a lifeguard. He stated, “without 100 percent certainty that [the proposed accommodations] would always be effective, I don't think you could safely have [Keith] on the stand by himself.” Ultimately, Stavale and her supervisors decided to revoke the offer of employment.

In 2008, Keith applied for another lifeguard opening, as well as a park attendant opening. He was not hired for either position. According to Oakland County, Keith was disqualified from consideration as a lifeguard based on his pre-employment physical in 2007, and his application for the park attendant position was not selected in the “blind draw process.” This appeal pertains only to the lifeguard position.

Keith filed a complaint in the district court alleging violations of the ADA and the Rehabilitation Act. Oakland County moved for summary judgment, arguing that Keith is not “otherwise qualified” to be a lifeguard at its wave pool because he cannot effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons. Further, Oakland County argued that hiring an additional lifeguard as an interpreter is an unreasonable accommodation.

Keith responded that he is “otherwise qualified” for the position and Oakland County revoked the offer of employment based on unfounded fear and speculation. According to Keith, he would require an interpreter only during staff meetings and further classroom instruction, which he argued is a reasonable accommodation. Keith also complained that Oakland County failed to make an individualized inquiry regarding his ability to perform the job or engage in an interactive process to determine whether he could be reasonably accommodated.

As evidence of his qualifications for the position, Keith provided the testimony of several experts. Anita Marchitelli has worked with deaf people in the area of lifeguarding and aquatics for more than thirty years. She is a certified...