KEES v WALLENSTEIN, 9735559
U.S. 9th Circuit Court of Appeals
KEES v WALLENSTEIN
9735559
REGINALD L. KEES; JOSEPH B.MCCREARY; ROBERT C. NIECE;JOHN C. STANDLEY,Plaintiffs-Appellants,v.ARTHUR WALLENSTEIN, Director,King County Department of AdultNo. 97-35559Detention; ARTHUR AND JANE DOED.C. No.WALLENSTEIN, a maritalCV-96-00643-WLDcommunity; MICHAEL GRABER,Director of Operations, King ORDER ANDCounty Department of Adult OPINIONDetention; MICHAEL AND JANE DOEGRABER, a marital community;GARY LOCKE, King CountyExecutive; KING COUNTY, a legalsubdivision of the State ofWashington,Defendants-Appellees.
Appeal from the United States District Courtfor the Western District of WashingtonWilliam L. Dwyer, District Judge, PresidingArgued and SubmittedAugust 4, 1998--Seattle, WashingtonMemorandum Filed August 17, 1998Order and Opinion Filed November 25, 1998Before: Dorothy W. Nelson, Alex Kozinski, andJohn T. Noonan, Circuit Judges.Opinion by Judge D.W. Nelson
_____________________________COUNSEL Sidney J. Strong, Kimberly A. Konat, Strong & Konat, Seat-tle, Washington, for the plaintiff-appellants.Norm Maleng, Diane H. Taylor, Donald W. Heyrich, KingCounty Prosecuting Attorney, Seattle, Washington, for thedefendants-appellees.
_____________________________ORDER The Memorandum disposition filed August 17, 1998, isredesignated as an authored Opinion by Judge D.W. Nelson.
_____________________________OPINION D.W. NELSON, Circuit Judge:Plaintiffs, former King County Jail corrections officers,appeal the district court's grant of summary judgment in favorof King County and various King County employees. Plain-tiffs brought an action alleging that they were removed fromtheir positions in violation of, inter alia, the Americans withDisabilities Act ("ADA"), 42 U.S.C. SS 12101-12213 (1994).Defendants maintain that plaintiffs are not qualified individu-als under the ADA because their inability to have directinmate contact prevents them from performing the essentialfunctions of the corrections officer job. We have jurisdictionpursuant to 28 U.S.C. S 1291, and we affirm.Factual and Procedural BackgroundRobert Niece, Joseph McCreary, Reginald Kees, and JohnStandley (collectively "plaintiffs") were employed by theKing County Department of Adult Detention ("DAD") as cor-rections officers at King County jail ("the jail"). All fourplaintiffs allege that they have impairments that prevent themfrom having direct contact with inmates.Niece started working as a corrections officer for the DADin 1977. In 1984, he suffered severe neck and back injuriesduring a training exercise, and consequently was preventedfrom working for a year. Upon his return from work, Niece'sphysician advised that he have no direct contact with inmatesbecause of the risk of subsequent injury and permanent paral-ysis.McCreary began working as a corrections officer for theDAD in 1977. In August 1988, he suffered life-threateninginjuries during an altercation with an inmate. In June 1989,his physician released him to work under the condition that hebe assigned to a two-officer station to avoid another confron-tation with an inmate.Kees has worked for the DAD as a corrections officer sinceMarch 1988. When one of his right toes was amputated in1991, his doctor restricted him to tasks not requiring directinmate contact.Standley has been working as a corrections officer for theDAD since 1972. In October 1994, he was diagnosed with adisplaced vertebra, and his physician restricted him to lightduty.Until 1994, the DAD accommodated plaintiffs' limitationsby assigning them exclusively to the control room, a post thatis considered "light duty." Fifteen of the eighty-eight correc-tions officer posts are control room posts. There are ten typesof posts, and corrections officers without medical restrictionsare normally expected to rotate among the various posts.According to the DAD, the duties of the control room postare as follows: Monitor video terminals, operate control panels and visually inspect to maintain security on a jail floor and control movement of inmates and authorized individuals to/from housing wing, recreation area, visitation area, medical treatment room, and eleva- tor. Operate computer keyboard, answer telephones, communicate with inmates and other authorized individuals by speaker or telephone.Inmates are not permitted access to the control room. Correc-tions officers at control room posts are not required to leavethe control room except in cases of extreme emergencies.Moreover, in order to fully isolate plaintiffs from inmate con-tact, plaintiffs were not required to respond to emergencies or"codes" even while on break.In 1990, Arthur Wallenstein became director of the DAD.It came to his attention that a number of corrections officershad been on light duty for extended periods of time. With theassistance of King County's Office of Human Resource Man-agement ("OHRM"), Wallenstein set out to discover whetherthese employees' conditions were permanent. Plaintiffsinformed Wallenstein that their conditions were permanent,and that no reasonable accommodation would allow them tohave direct contact with inmates.After determining that direct inmate contact is an essentialfunction of the corrections officer position, OHRM and Wal-lenstein separated plaintiffs from their jobs as corrections offi-cers. They were placed on medical leaves of absence andreferred to King County's employment placement services fornine months of assistance in finding another County position.After the County's attempts at placing plaintiffs in other jobswere unsuccessful, Kees, McCreary, and Niece were termi-nated as King County employees. Standley resigned in Janu-ary 1997.In April 1995, plaintiffs' union, Public Safety Employees,Local 519, filed a grievance on behalf of the corrections offi-cers "who have been notified that unless they obtain releasesto return to full duty status, they will be separated fromemployment with the Department of Adult Detention. " InJune 1996, the County made a settlement offer. Each plaintiffwas offered a DAD non-commissioned, support position suchas office technician, jail receptionist, or jail aide, at the fullcorrections officer salary. Plaintiffs rejected these offersbecause primarily the positions required direct inmate contact.In April 1996, plaintiffs filed suit against King County andseveral individual defendants (collectively "defendants") inKing County Superior Court, alleging violations of the ADA,the Washington Law Against Discrimination ("WLAD"), andintentional and negligent infliction of emotional distress.Plaintiffs also brought claims against Wallenstein under 42U.S.C. S 1983. Plaintiffs sought, inter alia, reinstatement totheir corrections officers positions with one accommodation:permanent assignment to the control room.Shortly after plaintiffs filed suit, defendants removed thecase to federal court. On March 27, 1997, defendants filed amotion for summary judgment on all claims. On the samedate, plaintiffs filed a cross-motion for summary judgment ontheir ADA and WLAD claims. On May 14, 1997, the UnitedStates District Court for the Western District of Washingtongranted defendants' motion and denied plaintiffs' motion.Plaintiffs appeal the district court's dismissal of their ADAand WLAD claims.Standard of ReviewA grant of summary judgment is reviewed de novo. SeeCovey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834(9th Cir. 1997). The appellate court must determine, viewingthe evidence in the light most favorable to the nonmovingparty, whether there are any genuine issues of material factand whether the district court correctly applied the relevantsubstantive law. See id.Analysis[1] In order to prevail on their claim, plaintiffs must estab-lish "(1) that [they are] disabled person[s] within the meaningof the ADA; (2) that [they are] qualified, that is, with or with-out reasonable accommodation*, [they are] able to performthe essential functions of the job; and (3) that the[County]terminated [them] because of [their] disability." Kennedy v.Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)(citationand footnote omitted). The court decides plaintiffs' stateantidiscrimination claims using the same analysis it uses tointerpret federal antidiscrimination law. See Sharpe v. Ameri-can Tel. & Tel. Co., 66 F.3d 1045, 1050 (9th Cir. 1995).[2] We agree with the district court that appellants are notqualified individuals with disabilities under the ADA. Noaccommodation would allow them to have direct inmate con-tact, an essential function of the corrections officer position.See Kennedy, 90 F.3d at 1481 (citing 42 U.S.C.S 12111(8)).[3] We have carefully considered each factor listed in 29C.F.R. S 1630.2(n)(3)(1997) for determining whether a partic-ular job function is essential. The record indicates that boththe employer and the written job description identify inmatecontact as a fundamental duty. Although corrections officersassigned to the control room are not expected to have inmatecontact on a regular basis, plaintiffs acknowledged that someincidental contact is inevitable. Further, their ability torestrain inmates during an emergency is critical to jail secur-ity. In fact, several corrections officers testified that jail safetyis currently jeopardized by appellants' inability to respond toemergencies. Finally, the relevant collective bargaining agree-ment indicates that King County corrections officers areexpected to rotate among several positions, most of whichrequire inmate contact.AFFIRMED. the end