Barnfield v. State of NH CV-95-293-JD 09/30/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ronald Barnfield

v. Civil No. 95-283-JD

State of New Hampshire

O R D E R

The plaintiff, Ronald Barnfield, brought this action

alleging that the defendant, the state of New Hampshire, violated

the Americans with Disabilities Act ("ADA"),

, by wrongfully terminating his employment as a

remedial teacher at the Youth Development Center ("YDC") after he

sustained a job-related injury. Currently before the court is

the defendant's motion for summary judgment under Rule 56

(document no. 11).

Background1

Beginning in 1990, the defendant employed the plaintiff as a

remedial teacher at the YDC, a state correctional facility

maintained by the New Hampshire Department of Health and Human

1The facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiff. Services and designed to detain and rehabilitate juvenile

delinquents. The plaintiff taught automobile mechanics to

teenage students and throughout his active employment

satisfactorily performed all the duties of his position. One of

his responsibilities, as indicated by his formal job description,

was to " [m]aintain[] the integrity of the secure care system

through closely supervising students in classrooms . . . and

through appropriately intervening in cases of possible AWOL,

assault, or self-injury to provide for the safety of institution

residents, staff and the community." Defendant's Memorandum of

Law in Support of Motion for Summary Judgment, Ex. G at 1.

The plaintiff shared responsibility for ensuring security

with both a teacher's aide, who assisted the plaintiff and was

always in the classroom, and cottage counselors, who were always

nearby but not normally in the plaintiff's classroom. The

plaintiff completed an initial twenty-hour training session,

annual four-hour refresher courses, and monthly workshops in

aggressive behavior management, as required of all YDC employees

who came in contact with the students. On two occasions during

his employment, he physically restrained students with the help

of the teacher's aide. The process of restraining a juvenile

2 involved the plaintiff and the aide each grabbing one of the

student's arms and then, when the cottage counselor arrived,

turning the student over to the cottage counselor. On other

occasions, the plaintiff interposed himself between combative

students or blocked individual students near a wall to segregate

them from other students.

On March 20, 1992, during the course of his employment, the

plaintiff suffered a back injury -- a herniated disc that

ultimately reguired surgery. On doctor's advice, he did not

return to work during either the 1991-92 or the 1992-93 school

years, but took disability leave. During the spring of 1993 he

informed his supervisor that he felt he could return to work, but

because the school year was nearly over his supervisor instructed

him to wait until the next school year to return. On June 10,

1993, one of the plaintiff's physicians sent a medical report to

the defendant, opining that the plaintiff could return to work

with restrictions on lifting and the additional limitation that

he "not be the physical disciplinarian of challenging, resistive

or combative teenagers." Complaint 5 18.

Shortly after receiving the doctor's medical report, the

defendant notified the plaintiff by a letter dated June 22, 1993,

3 that he was being discharged from employment for non-disciplinary

reasons as of June 25, 1993. The letter stated that "it is

impossible to guarantee that you would not be in a position where

physical restraint of a student is reguired." Defendant's

Memorandum of Law in Support of Motion for Summary Judgment, Ex.

B, Attachment 6 at 1.

Despite receiving this notice, the plaintiff reguested that

he be allowed to continue in his position with the "accommo­

dation" that the security function of restraining juveniles be

assumed by his aide and the cottage counselors. Although as of

September 1993, the plaintiff physically was ready to return to

work and capable of performing all of his job functions,

including restraining students if necessary, he was not

reinstated to his former position and did not find another

satisfactory position with the defendant. On June 1, 1995, the

plaintiff filed this action seeking a jury trial claiming that

the defendant terminated his employment in violation of the ADA.2

Discussion

The defendant has moved for summary judgment, claiming,

2The plaintiff initially asserted two additional claims, which previously have been dismissed.

4 inter alia, that the plaintiff was not a "qualified individual

with a disability" under the ADA because he could not perform the

essential job function of restraining YDC juveniles when he was

discharged. The defendant asserts that the plaintiff was not

entitled to the accommodation of having an aide take over the

security function he could not perform because doing so would

have eliminated an essential job function. The plaintiff

counters that he was disabled within the meaning of the ADA. In

addition, he asserts that he was a qualified individual because

since September 1993, he has been able to perform all essential

functions of his job with or without a reasonable accommodation.

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually required." Snow v.

Harnischfeger Corp.,

(1st Cir. 1993) (quoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992), cert, denied, 113 S. C t . 1845 (1993)), cert. denied,

115 S. C t . 56 (1994). The court may only grant a motion for

summary judgment where the "pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

5 material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c). The party seeking

summary judgment bears the initial burden of establishing the

lack of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986); Quintero de Quintero v.

Aponte-Rogue,

(1st Cir. 1992). The court

must view the entire record in the light most favorable to the

plaintiff, "'indulging all reasonable inferences in that party's

favor.'" Mesnick v. General Elec. Co.,

(1st

Cir. 1991) (guoting Griqqs-Rvan v. Smith,

(1st

Cir. 1990)), cert, denied,

(1992). However, once

the defendant has submitted a properly supported motion for

summary judgment, the plaintiff "may not rest upon mere

allegation or denials of his pleading, but must set forth

specific facts showing that there is a genuine issue for

trial[,]" Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)), or suffer the "swing of

the summary judgment scythe." Jardines Bacata, Ltd. v. Diaz-

Marquez,

(1st Cir. 1989). "In this context,

'genuine' means that the evidence about the fact is such that a

reasonable jury could resolve the point in favor of the nonmoving

6 party, Anderson,

; 'material' means that the fact

is one 'that might affect the outcome of the suit under the

governing law.1" United States v. One Parcel of Real Property,

(1st Cir. 1992) (guoting Anderson,

) .

The ADA prohibits discrimination against "a gualified

individual with a disability because of the disability of such

individual."

(a) (West 1995). The statute

defines a disability as " (A) a physical or mental impairment that

substantially limits one or more . . . major life activities

. . .; (B) a record of such an impairment; or (C) being regarded

as having such an impairment."

§ 12102(2). Under the ADA, a

gualified individual with a disability 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." Id. § 12111(8). In light of

the statutory definitions, the ADA provides a cause of action for

a party who can show:

First, that he was disabled within the meaning of the Act. Second, that with or without reasonable accommodation he was able to perform the essential functions of his job. And third, that the employer discharged him in whole or in part because of his disability.

7 Katz v. City Metal Co.,

(1st Cir. 1996) . The

statute and its implementing regulations further define the terms

"essential function" and "reasonable accommodation."

Essential functions are "the fundamental job duties of the

employment position the individual with a disability holds or

desires" and not "the marginal functions of the position."

(n) (1) (1995) .

A job function may be considered essential for any of several reasons, including but not limited to the following:

(i) The function may be essential because the reason the position exists is to perform that function;

(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(ill) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

§ 1630.2(n)(2). The regulations also provide guidanceas to

whatfactors a court may consider in determining whether a

function is essential (hereinafter the "CFR factors"):

Evidence of whether a particular function is essential includes, but is not limited to:

(i) The employer's judgment as to which

8 functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(ill) The amount of time spent on the job performing the function;

(iv) The conseguences of not reguiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

Id. § 1630.2(n)(3). Although determination of what constitutes

an essential job function is a fact-specific inguiry, summary

judgment still may be appropriate on a properly developed factual

record. See Borkowski v. Valiev Cent. Sch. Dist.,

(2nd Cir. 1995) (arising under Rehabilitation Act).

Reasonable accommodations include the following:

Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a gualified individual with a disability to perform the essential functions of that position . . . .

(o)(l)(ii) (1995). Specific examples of reasonable accommodations include

job restructuring, part-time or modified work schedules, reassignment to a vacant position, acguisition or modification of eguipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of gualified readers or interpreters, and other similar accommodations for individuals with disabilities.

(9)(B) (West 1995). However, a reasonable

accommodation does not include eliminating any of a job's

essential functions. E.g., Borkowski,

; Gilbert v.

Frank,

(2d Cir. 1991); McDonald v. Kansas Pep't

of Corrections,

(D. Kan. 1995) .

The defendant has moved for summary judgment contesting the

plaintiff's claims on several grounds.3 However, since the

plaintiff has failed to demonstrate that there is a genuine issue

3The defendant first asserts that the plaintiff was not disabled within the meaning of the ADA, the first element of the Katz analysis. For the purposes of this summary judgment motion, the court finds that the plaintiff has made a sufficient showing that he was disabled at the time his employment was terminated to raise a genuine issue of material fact for trial as to his disability. The second Katz element is discussed in detail infra. As to the third Katz element, because the defendant asserts that the plaintiff did not suffer from a disability it also implicitly asserts that it did not discharge him because of a disability. However, the defendant has not contested that it discharged the plaintiff because of his perceived or actual inability to restrain juveniles. Therefore, the court finds that the plaintiff has sufficiently demonstrated, for purposes of withstanding summary judgment, that he was discharged because of his alleged disability.

10 of material fact with respect to the second Katz factor, that is

the only factor that the court need discuss in detail. The

relevant inquiry is whether, at the time of his discharge, the

plaintiff was able to perform the essential functions of his job

with or without a reasonable accommodation.

The defendant asserts that the ability to restrain students

is an essential function of the remedial teacher position. In

support of this assertion, it offers the following facts:

(1) The defendant determined that the job function is essential. Defendant's Memorandum of Law in Support of Motion for Summary Judgment, Ex. B, Affidavit of Sandra Platt, Manager of Human Resources for the New Hampshire Department of Health and Human Services ("Platt Aff.") 5 15 ("It was determined that the requirement to maintain the integrity and security of the facility was an essential job function that could not be eliminated."). The court finds this to be uncontested and conclusive evidence of CFR factor (i) •

(2) The defendant prepared a job description prior to the plaintiff's disability which listed as "Accountabilities," inter alia, " [m]aintain[ing] the integrity of the secure care system through closely supervising students in classrooms . . . and through appropriately intervening in cases of possible AWOL, assault, or self-injury to provide for the safety of institution residents, staff and the community."

Ex. G, Supplemental Job Description for Remedial Teacher position (established 8/15/88 and last amended 9/10/90) at 1. The court finds this to be uncontested and conclusive evidence of CFR factor (ii).

11 (3) The defendant required extensive training of all YDC employees in physical restraint techniques.

Ex. B, Platt Aff. 5 5 (Platt's recitation of training requirements for YDC employees with discussion of the plaintiff's personnel training report), Ex. C, Plaintiff's Answer to Defendant's First Set of Interrogatories at 6 (plaintiff recounting his attendance at mandatory monthly aggressive behavior management workshops). The court finds this to be uncontested but incon­ clusive evidence of CFR factors (ill), (vi), and (vii). And,

(4) The defendant believed there to be a possible risk to the plaintiff and others if the plaintiff attempted to perform his job while unable to restrain students, including the possibility that the plaintiff might be used as a hostage.

Ex. D, Affidavit of Ronald Adams, Superintendent of the YDC ("Adams Aff.") 5 9. The court finds this to be contested and inconclusive evidence of CFR factor (iv).

The defendant has adduced facts to support its contention

that the responsibility for restraining juveniles is an essential

function of the job of remedial teacher at the YDC within the

statutory and regulatory definitions. The defendant determined

that the ability to restrain juveniles was important for remedial

teachers and other YDC personnel, integrated a requirement to

that effect into its official job description, and specifically

trained staff members in techniques to perform this function, all

in an effort to ensure the safety of everyone at the YDC. The

court finds that the defendant's showing satisfies its

12 preliminary burden of demonstrating a lack of a genuine issue of

material fact on the essential function issue.

In response, the plaintiff asserts that the ability to

restrain juveniles is not an essential function of his former

position. The plaintiff contends that: (1) the defendant has

not produced sufficient evidence of the CFR factors to

demonstrate the lack of a genuine issue of material fact to

justify summary judgment; (2) the presence of a teacher's aide

and the availability of cottage counselors meant that the

plaintiff's help was not reguired to restrain students, and

therefore that the security function is not essential to his

individual position, see Complaint 55 25, 26; and (3) the fact

that the plaintiff did not spend very much time restraining

students (having done so only two times in the three years he was

employed by the YDC), Barnfield Aff. 5 8.

However, the court does not find any of these arguments

compelling. The plaintiff's first argument is general, and

misconstrues either the burden-shifting framework applicable in

the summary judgment context, the effect of the CFR factors, or

both. In this case, the defendant bears the initial burden

because it has sought summary judgment. However, the moving

13 party need produce neither all relevant evidence nor evidence as

to all of the individual CFR factors to win on summary judgment

but simply enough evidence to show that there is no genuine issue

of material fact for trial. Where, as here, the court finds the

moving party has met that initial burden, the non-moving party

bears the burden of showing that there remains a genuine issue of

material fact for trial. See Anderson,

. The

plaintiff cannot resist summary judgment merely by alleging that

relevant facts exist that would support his position, but must

instead produce specific facts. See

To the extent that the

plaintiff has failed to produce specific facts to demonstrate

that there are genuine issues of material fact for trial, the

plaintiff has failed to carry its burden of response to the

summary judgment motion.

The plaintiff's second and third arguments are more specific

but also fail. In his second argument he asserts that restraint

of students is not an essential function for him because of the

presence of a teacher's aide and the availability of cottage

counselors. However, the plaintiff admits that the restraint

procedure he himself was forced to follow on two occasions

reguired both him and the teacher's aide to restrain the student

14 while they waited for a cottage counselor to arrive. The

plaintiff has not explained how the procedure could work if he

were unable to assist the teacher's aide before a cottage

counselor arrived. He also has not controverted the defendant's

assertion that YDC restraint technigues reguire two people for

maximum safety and effectiveness. In his third argument, he

asserts that the restraint function is not essential because he

performed it infreguently. While infreguency is a factor to be

considered (see CFR factor (ill)) it must be considered in

context and not in a vacuum. The plaintiff has offered no

additional facts beyond his mere assertion of infreguency. The

defendant, while acknowledging that the plaintiff has only

physically restrained students two times during three years of

employment, attests that the instructor's constant ability to

restrain students is reguired. Adams Aff. 5 5. The ability to

restrain students promotes the safety of everyone at the YDC, and

the concomitant deterrent effect implied in such an ability has a

salutary effect on classroom discipline by deterring juveniles

who might otherwise reguire physical restraint. See

55 6, 9.

The plaintiff has not adduced facts to contest the defendant's

showing that a YDC remedial teacher's ability to restrain

15 students remains essential despite the existence of other

employees responsible for similar duties and the fact that the

ability to restrain students is seldom exercised.

In the face of the evidence produced by the defendant, the

plaintiff's response does not meet his burden of demonstrating

that there are genuine issues of material fact for trial on the

essential function issue. Accordingly, the court finds that the

ability to restrain juveniles is an essential function of the job

of remedial teacher at the YDC.

Despite the failure of his essential function argument, the

plaintiff might still resist summary judgment by adducing

evidence that he could perform this function with or without a

reasonable accommodation. As to performing the security function

with a reasonable accommodation, the plaintiff's only suggested

accommodation is that the security function be assumed by the

aide and the cottage counselors. However, as noted supra, a

reasonable accommodation does not reguire the reassignment of

essential job functions. See, e.g., Borkowski,

;

Gilbert,

; McDonald,

.

Because the plaintiff has suggested no other accommodation, the

court finds that the plaintiff, at the time his employment was

16 terminated, could not perform the essential functions of his

position with a reasonable accommodation.

The plaintiff's final contention is that he currently is

able to perform all the essential functions of his position

without a reasonable accommodation. In support of this argument,

he asserts that at all times since September 1993 he has been

able to perform all his duties as a remedial teacher, including

restraint of juveniles. However, here the plaintiff's argument

runs afoul of his own theory of the case, which rests on the

claim that "the defendant's unlawful and discriminatory

termination of his employment as a result of his disability or

what was perceived or regarded to be a disability by the

defendant, violates the ADA." Complaint 5 34 (emphasis added);

see Malek v. Martin Marietta Corp.,

(D.

Kan. 1994) (ADA case indicating that discriminatory discharge and

discriminatory failure to recall state separate claims); see also

Daughtry v. King's Dept. Stores, Inc.,

(1st

Cir. 1979) (failure to rehire distinct from termination so

continuing violation doctrine inapplicable). The plaintiff

admits that he was discharged effective June 25, 1993. The

plaintiff's ability to restrain students over two months after

17 his allegedly unlawful discharge is not relevant to the guestion

of whether he could perform this essential function of his job at

the time he was discharged. Because the plaintiff has not

produced any evidence to rebut the medical report furnished by

his own doctor indicating that the plaintiff could not restrain

juveniles on June 25, 1993, no genuine issue of material fact

remains -- the plaintiff was unable to restrain students at the

time his employment was terminated.

Accordingly, the court finds that the defendant's

termination of the plaintiff's employment did not violate the

plaintiff's rights under the ADA, and grants summary judgment to

the defendant on the plaintiff's ADA claim.

Conclusion

The defendant's motion for summary judgment (document no.

11) is granted. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge September 30, 1996

cc: Catherine C. Catalano, Esguire Susanna G. Robinson, Esguire Martha A. Moore, Esguire

18