U.S. Department of Justice Civil Rights Division Coordination and Review Section P.O. BOX 66118 Washington, D.C.

20035-6118

FEB 6 1995 XX XX XX RE: Complaint Number X Dear Mr. XX : This letter constitutes the Department of Justice's Letter of Findings with respect to the complaint you filed concerning alleged violations of Title II of the Americans with Disabilities Act of 1990 (ADA) by the West Peoria Fire Protection District (District). Title II of the ADA, 42 U.S.C. ​ 12131-12134, prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments. You alleged that, as a volunteer Firefighter in the District, you were not allowed to drive the District's emergency vehicles and were denied a promotion because of your disability. The coordination and Review Section of the Civil Rights Division has responsibility for coordinating the investigation of complaints under Title II by Federal agencies and investigating complaints for which the Department of Justice is the designated agency. As discussed below, the Department has determined that the District has not violated Title II with respect to the issues raised in your complaint. Further, the District's assurances that you will be eligible for promotion to higher ranks and its proposal to modify the current testing procedures will ensure that you have an equal opportunity for advancement.

Each complaint investigation conducted by this Department is done on a case-by-case basis. This determination refers solely to the allegations you raised and is based on the facts presented and the evidence submitted by you and the District. This concludes our investigation and we are closing this complaint effective the date of this letter. The remainder of this letter sets forth the results of the Department's review. 01-00264 -2If you are dissatisfied with our determination, you may file a complaint presenting your allegations of discrimination in an appropriate United States District Court under Title II of the ADA. You should be aware that no one may intimidate, threaten, or coerce, or engage in other discriminatory conduct against anyone because he or she has either taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if the situation warrants. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence upon request. In the event that we receive such a request, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy. If you have any questions about this letter, please feel free to contact Mr. Thomas Esbrook of my staff at (202) 307-2940. Sincerely,

Merrily A. Friedlander Acting Chief Coordination and Review section Civil Rights Division

Enclosure : Findings cc: Robert H. McGann President, Board of Trustees West Peoria Fire Protection District

01-00265

XX

v. West Peoria Fire Protection District Complaint Number XX FINDINGS

Mr. XX , a volunteer Firefighter in the District, filed a complaint alleging that he has been denied the opportunity to drive the District's emergency vehicles because of his disability. Mr. XX has a congenital condition that resulted in a below-the-elbow amputation of his left arm. He asserts that this disability does not interfere with his ability to successfully perform all of the duties and responsibilities of a Firefighter. The complainant alleges that he has been denied the right to drive emergency vehicles based on fears of increased insurance cost liability and negative publicity, should he be involved in an accident. He further alleges that the denial of driving privileges has prevented him from being promoted to higher ranks. The promotion ladder in the District goes from Firefighter to Engineer, Captain, Assistant Chief, and Chief. To become an Engineer, one must be able to drive the District's emergency vehicles.

Title II prohibits discrimination on the basis of disability by public entities. A "public entity" means any State or local government or any department, agency, special purpose district, or other instrumentality of a State or local government. 28 CFR ​ 35.104. (emphasis added) The evidence provided establishes that the District is a "special purpose district." The District noted in its response to the Department that it is a special district under Illinois law and is governed by a Board of Trustees appointed by the County Board of the county in which it is located. Documents submitted reflect that the District is a separate municipal corporation established pursuant to the Fire Protection District Act, 20 ILCS 705 ​ 1. The District is, therefore, a public entity covered by Title II of the ADA. Issues Whether the District violated Title II of the ADA by refusing to allow Mr. X to drive and denying him the opportunity for promotions within the District in violation of the Title II implementing regulation, 28 C.F.R. ​ 35.130 (a), which states "no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity,..." 01-00266

-2Complainant's Position XX has been a Firefighter in the District since 1981. Prior to 1985, he was permitted, on occasion, to drive certain emergency vehicles such as the ambulance and rescue truck. Mr. X seeks the opportunity to have both driving privileges and promotion opportunities as a member of the District's fire department. He is aware that in order to be promoted to the next higher rank of Engineer, the ability to safely operate the District's emergency vehicles is essential. He has completed all required certifications for promotion to

Engineer, except for driving. He disagrees with the District's evaluations of his driving abilities. He acknowledges that his disability gives him trouble handling the larger emergency vehicles, known as "pumpers," but claims he is competent to drive smaller vehicles, such as the ambulance and rescue truck. He wants the opportunity to drive these smaller vehicles and to be promoted. Mr. XX occasionally uses an artificial prosthesis on his arm. However, the prosthesis actually hinders his ability to drive, so he does not use it while driving. He believes he can safely operate emergency vehicles with one arm. District's Position The District stated that it welcomed Mr. XX as a volunteer firefighter well before passage of the ADA, knowing his disability. The District's position is that Mr. XX is not allowed to drive any emergency vehicles. The District stated that it has never granted Mr. XX permission to drive and that no reasonable accommodations can be made to allow him to safely do so, in a way that will not endanger other firefighters or the public. Each time Mr. XX requested permission to drive, his request was denied, based on evaluations of his driving skills. In all other respects, Mr. XX has been allowed to perform as a Firefighter and has done so satisfactorily. Evidence Presented The District asserted that driving emergency vehicles is a requirement for promotion to the position of Engineer. The District maintains a fleet of vehicles used in emergencies, ranging from smaller rescue trucks, to ambulances, to larger fire trucks, known as "pumpers." An Engineer must be able to drive a pumper, as well as carry out other responsibilities of maintaining and operating the pumper. For all positions except Engineer, such as Captain, Assistant Chief, or Chief, driving emergency vehicles is not an essential job function. 01-00267 -3The District acknowledges that Mr. XX "inability to drive does adversely impact his opportunities for promotion." The District believes Mr. XX would be a threat to the safety of the public and other firefighters if he were allowed to drive.

The District stated that "no distinctions are made between driving under emergency and non-emergency situations, as due to the size of the department, the number and type of apparatus, and the department's responsibilities, an emergency can occur at any time, and a non-emergency situation become an emergency." According to District officials, the skills needed to safely operate a vehicle include the ability to navigate fire apparatus in all emergency and non-emergency situations and to use both hands in operating a vehicle. The District's promotion ladder is as follows: in order to become an Engineer, one must first have been a Firefighter; for Captain, one must come from the ranks of Engineer or higher; for Assistant Chief, one must come from the rank of Captain or higher; for Chief, one must come from the rank of Assistant Chief or higher. The "Engineer Training Progress Report" for XX shows that he has completed all requirements for promotion to Engineer with the exception of the driving test. Mr. XX ability to safely operate District vehicles has been evaluated on several occasions. The District supported its position with respect to the safety of allowing Mr. XX to drive with written evaluations by Mr. XX supervisors. For example: In 1983 during a drivers test on a rescue vehicle the evaluator observed: "Concerned about taking evasive maneuvers to avoid an accident..." In 1985 Captain McGann wrote: "I do not feel that XX can safely operate a moving ... vehicle such as we have... I feel he would be detrimental to himself and the crew riding the vehicle. ... I believe that he does not have full control of the apparatus." On another occasion (undated) Captain Doering concluded:"I don't think XX can control a emergency vehicle with one arm. ... He scares me when he is driving." When tested on several occasions in 1985 as part of his Drivers Road Test, Mr. XX was unable to satisfactorily complete the driving test. Observations made by Assistant Chief Deschle, who tested him on three different fire engines, included:

01-00268 -4. . . unable to control, shift smoothly, or turn a manual shift engine company... unable to control steering wheel.... Should you hit a winter pot hole or any road hazard you would not be able to maintain control or take evasive action quick enough to prevent possible injury to the firefighters... In 1988, after receiving another request from Mr. XX for driving privileges, the Chief evaluated him driving both an engine and an ambulance. The Chief, Mr. Robert Stecher, observed the following: ... difficulty using turn signal...vehicle not under control. ... difficulty in shifting ... vehicle not under control... The above tests were conducted under normal conditions. Due to the fact that these vehicles are used under many adverse conditions... I do not feel that XX could safely operate either the ambulance or an engine company. I also question his ability to make evasive maneuvers. It is my recommendation that because of the above facts, XX can not be a driver for the department. Legal Standards The Title II regulation prohibits individuals with disabilities from being denied the benefits of the programs, services and activities of public entities on the basis of disability. 28 CFR 35.130(a). The regulation also requires public entities to make reasonable modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability. 28 CFR 35.130(b)(7). A public entity is not required to permit an individual with a disability to participate in its programs and activities if that individual poses a direct threat to the health or safety of others. A "direct threat" is a significant risk to the health and safety of others that cannot be eliminated by a modification of policies,

practices, or procedures, or by the provision of auxiliary aids or services. (See the preamble to the Title II regulation, 56 Fed. Reg. 35,701 (1991).) Although this case involves volunteer work (as opposed to employment), we looked to Title I of the ADA for guidance in determining whether the District discriminated against the complainant on the basis of disability. Title I prohibits discrimination on the basis of disability against qualified individuals with disabilities in regard to job assignments and 01-00269 -5promotion. 29 CFR 1630.4. Title I makes it unlawful for a covered entity to use qualification standards that screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless that qualification standard is job-related and consistent with business necessity. 29 CFR 1630.10. The term "qualification standard" may include a requirement that an individual shall not impose a direct threat to the health or safety of the individual or others in the workplace. 29 CFR 1630.15(b)(2). Analysis The complainant alleges that the District's failure to let him drive emergency vehicles denies him benefits that other volunteers receive, as well as the opportunity for promotion on the basis of disability. The District asserts that Mr. XX disability directly affects his ability to safely operate its vehicles, making him a direct threat to the safety of other firefighters and the public. The District also claims there are no reasonable modifications that would allow the complainant to safely operate its emergency vehicles. The complainant acknowledges that there are no modifications that would allow him to drive the larger vehicles, and that he has never requested any. He maintains that he is able to operate smaller vehicles such as the ambulance and rescue truck in a safe manner, and that he can drive the larger pumpers with some difficulty. The evidence submitted by the District establishes that qualified supervisory staff have conducted individualized assessments of XX driving skills. Each evaluation

appeared objective and each raised concerns about Mr. XX ability to control a vehicle and to take evasive maneuvers in the event of a sudden emergency. The conclusions of each evaluator were consistent in expressing concern for the safety of other firefighters and the public, should Mr. XX be permitted to drive. The District stated that its decision to deny Mr. XX driving privileges was based on identifiable and specific concerns for public safety, and not on generalizations or stereotypes about the effects of his disability. Both the complainant and the District agreed there are no modifications or accommodations for his disability that would mitigate these safety concerns, and both agreed that driving is an essential element of the position of Engineer. However, Engineer is the only position in the District that requires driving as an essential element of the job. While maintaining its view that

01-00270 -6the complainant cannot be permitted to drive emergency vehicles, the District subsequently indicated that it could modify its promotion criteria with respect to Mr. XX to allow him the opportunity for promotion without first becoming an Engineer. The District also said that it would consider modifying the essential elements of the Engineer 'Position. Recently, the District did, in fact, nominate Mr. XX for promotion to the position of Captain. However, Mr. XX declined the offer at that time to allow another colleague to be promoted. He indicated he would he interested in a future promotion. Conclusion Based upon the facts as discussed above, the Department has concluded that the District's decision to deny the complainant's request for driving privileges as a Firefighter was based on identifiable and specific concerns for public safety, and not on generalizations or stereotypes about the effects of his disability. In addition, both the complainant and the District agreed that there are no modifications or accommodations for his

disability that would mitigate these safety concerns. For these reasons, we find that, in this case, the District's denial of driving privileges does not constitute discrimination on the basis of disability against the complainant. Moreover, the subsequent actions taken to provide the complainant the opportunity for promotion successfully resolve that aspect of the complaint. 01-00271