JUL 19 1993 XXX XXX XXX Re: Employment Discrimination Complaint of XXX XXX - Department of Justice complaint No.

XXX Dear Mr. XXX : This letter constitutes the Department of Justice's letter of findings with respect to your complaint filed with our office under title II of the Americans with Disabilities Act [ADA]. in your complaint, you alleged that the Town of Louisa, Virginia, discriminatorily terminated your employment as a police officer an or about XXX based an your disability. You asserted that the town failed to reasonably accommodate you by allowing you leave without pay during the period that you needed to be absent from work to receive medical attention relating to your disability. Further, you stated that the town declined, without explanation, the offer of your son, a qualified Virginia law enforcement official, to perform your duties gratis as a town police officer while you were absent. Title II of the ADA prohibits employment discrimination against qualified individuals with disabilities on the basis of their disability in the services, programs, or activities of a local government such as the Town of Louisa. Our office enforces the requirements of title II of the ADA for certain entities, including police departments, through investigation, negotiation, and if necessary, referral for possible litigation. Requirements for Non-discriminatory Employment Practices The alleged act of discrimination occurred prior to July 26, 1992, the effective date of title I of the ADA. In such situations, the title II regulation incorporates the substantive standards contained in the Department of Justice's section 504 coordinating regulation for federally assisted programs as the cc: Records CRS Friedlander Stewart. XXX .1of

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-2legal standard for judging whether you were terminated in violation of title II. See 35.140[b][2]. As relevant here, the Department's section 504 coordinating regulation provides that 11[n]o qualified handicapped person shall on the basis of handicap be subjected to discrimination in employment 28 C.F.R. 41.52[a]. A qualified handicapped person in the employment context is "... a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question ...." 28 C.F.R. 41.32. The Town of Louisa "... shall make reasonable accommodation to the known physical ... limitations of an otherwise qualified handicapped ... employee unless [the town] can demonstrate that the accommodation would impose an undue hardship on the operation of its program." 28 C.F.R. 41.53. Statement of the Facts You were employed as a police officer by the Town of Louisa in the early 1980's. In late July 1982, you sought medical treatment at the Walter Reed Medical Center, Washington, D.C. A heart surgeon at Walter Reed diagnosed you as having atherosclerotic heart disease. You had CABG surgery on XXX During this period, you were absent from work from XXX to XXX due to your heart condition. On May 27, 1992, you were examined by a doctor at Walter Reed and were informed that you would need additional open heart surgery. The doctor stated that you were to rest and not to

exert yourself until you had recovered from surgery. On May 28, 1992, you met with Beverly R. Ripley, the Louisa Town Manager, and informed her that you would have to have additional heart surgery. In a letter dated May 29, 1992, Ms. Ripley informed you that you had 14 days and 2 hours of sick leave and 10 days of annual leave. Although your operation was originally scheduled for late June, your doctors at Walter Reed continued to delay the date for surgery. By a letter dated Tune 22, 1992, C. Franklin Drumheller, the Mayor of Louisa, informed you that your sick and annual leave would expire on July 8, 1992. The Mayor stated: As we are certain that you understand, the Town Council has a responsibility to provide law enforcement services to its citizens, and your absence leaves us in a position where we are unable to adequately provide for those needs. Accordingly, in the event you are unable to report to work on July 9, 1992, then please be advised that Town Council will be left with no

01-00050 -3alternative other than to declare your position vacant and will have to take immediate steps to fill that vacancy. In response to the Mayor's letter, your son, XXX, wrote the Mayor on June 26, 1992. Your son, a Louisa County Deputy Sheriff, offered "... [his] services during [his] off duty and vacation time to fill in for Officer XXX until he is able to reassume his duties as a police officer for the Town of Louisa." During a July 21, 1992, executive session of the Town Council, the town determined to reject your son's offer and instead elected to hire another individual on a full-time, permanent basis to fill your position. Thereafter, in a letter dated August 7, 1992, to your attorney, the Town of Louisa

reaffirmed its decision to declare your position vacant as of XXX. Your open heart surgery was finally performed on you on XXX. In telephone conversation with you on January 7, 1993, you informed this office that you were still in convalescence and would not be able to perform the duties of your former police officer position for the foreseeable future. The Town of Louisa has nine full-time employees including two police officers. It does not provide leave without pay for extended illnesses to its employees due to the small size of its work force. Issues 1. Whether you are an individual with a disability as defined by the Department's section 504 regulation. 2. Whether you are a qualified individual with a disability with respect to your former position of police officer. Analysis The facts demonstrate that you have a disability, atherosclerotic heart disease, that substantially limits your ability to work. Therefore, you are an individual with a disability under the Department's regulation. For you to be a qualified individual with a disability for the position of police officer, the evidence must reflect that you are "... a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question." 28 C.F.R. 41.32. The facts disclose, however, that you were unable to perform the essential functions of the job with or without reasonable accommodation since you were and continue to be incapacitated for the position of police officer. Due to the extremely small size of the town's police force, it 01-00051

-4would impose an undue hardship upon the town to provide you with your requested accommodation of leave without pay for an indefinite period of time. Further, the town's decision to fill your former position with a full-time, permanent employee was not improper since there was no foreseeable time that you could return to your former position. Under these circumstances, the town's decision to reject your son's offer was a reasonable one since a small employer has less flexibility in filling positions on an interim basis, particularly when those positions are directly concerned with public safety. Therefore, we conclude that the town did not violate title II of the ADA when it terminated you on XXX. Conclusion This letter constitutes our letter of findings with respect to your allegations of discrimination in your administrative complaint. If 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. Under the Freedom of Information Act, 5 U.S.C. 552, we may be required to release this letter and other correspondence and records related to this complaint in response to a request from a third party. Should we receive such a request, we will safeguard, to the extent permitted by the Freedom of Information Act and the Privacy Act, the release of information which could constitute an unwarranted invasion of your or other's privacy. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division

cc: The Honorable C. Franklin Drumheller Mayor, Town of Louisa

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