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

20035-6118 OCT 12 1994 (STAMPED) Susan Shoemaker Advocate South Carolina Protection and Advocacy System for the Handicapped, Inc. Region IV 1350 Ashley River Road Charleston, South Carolina 29407 RE: Complaint Number XX Dear Ms. Shoemaker: This letter constitutes our Letter of Findings with respect to the complaint you filed on behalf of Mr. XX against the Sea Pines/Forest Beach Fire Department (which has since combined with the Hilton Head Island Fire Department) with the Department of Justice, Civil Rights Division, Coordination and Review Section. Your complaint alleged violations of Title II of the Americans with Disabilities Act of 1990 (ADA). Title II prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments. Specifically, you alleged that the Fire Department refused to provide Mr. XX with the reasonable accommodation he requested and then fired him on the basis of his disability on XX . You also alleged that the Fire Department did not provide notice regarding the provisions of the ADA to its employees and had not adopted ADA grievance procedures. We have completed our investigation of this complaint. We have determined, based on information provided to us by both you

and the Fire Department, that the Fire Department did not discriminate against Mr. XX on the basis of his disability when it declined to provide him the reasonable accommodation he requested and terminated his employment. Legal Standards The Title II implementing regulation states that "no qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a public entity." (28 C.F.R. 35.140) The regulation implementing Title I of the 01-00200 -2 ADA, which prohibits discrimination on the basis of disability by public and private employers, applies to employment covered by both Title I and Title II. The Title I implementing regulation states that it is unlawful to discriminate on the basis of disability in "hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring." ((29 C.F.R. 1630.4(b)) The regulation also makes it unlawful for a covered entity "not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship..." (29 C.F.R. 1630.9(a)) Reassignment to a vacant position is a possible reasonable accommodation if a position is vacant within a reasonable amount of time. The Title II regulation also requires a public entity to provide information to the public on their rights and protections under the ADA. (28 C.F.R. 35.1056) The regulation requires a public entity that employs 50 or more persons to establish grievance procedures to handle complaints alleging violations of Title II. (28 C.F.R. 35.107(b)) Facts According to the Sea Pines/Forest Branch Fire Department "Rules and Regulations," firefighters are required to pass the Davis Dotson Target and Combat Test on an annual basis. The

Davis Dotson Test consists of two tests. The Target Test is a screening exam to determine overall fitness. A minimum score of 60 is necessary to pass this test. If the firefighter passes the Target Test, he or she takes the Combat Test, which simulates the working conditions of a firefighters. According to the Sea Pines/Forest Beach Fire Department's "Personnel Policies for Physical Fitness," if a firefighter fails the Target Test, he or she must be examined by the Department physician. If the firefighter is not deemed physically fit to take the Combat Test, the Department physician may allow the firefighter six months to take the Combat Test if the physician determines that the firefighter will be fit enough in that amount of time. If the firefighter fails the Target Test, he or she has the right to use his or her own private physician to determine the fitness of the firefighter. The personal physician can prepare the firefighter for the Combat Test. If a firefighter fails the Target Test and is deemed unfit to take the Combat Test, he or she will be terminated. Mr. XX as hired by the Fire Department in XX In Mr. XX was hospitalized after a post traumatic disorder was diagnosed. He has also been diagnosed with patellar tendinitis of both knees.

01-00201 -3 In December 1991, Mr. XX failed the Target Test of the Davis Dotson Test, which is required on an annual basis. In January 1992 , Mr. XX had difficulty completing the Smoke Maze training class and recorded an elevated blood pressure reading in preparation for the SCBA-Stress Test, requiring physical tasks while donning full gear and self-contained breathing apparatus [SCBA] . In January 1992, Mr. XX was reassigned to driving Engine 2 and was not allowed to perform as a firefighter. Mr. XX again failed the Target Test in April and May 1992. Dr. Wood, the Department doctor, recommended that Mr. XX lose 10 pounds, run, and retake the Test in six weeks. While Mr. XX was acting as a driver for the Fire Department, he was involved in three minor traffic accidents. Mr. XX supervisors stated that, at this time, he was exhibiting symptoms of stress. On XX Mr. XX was

placed on sick leave. On July 23, Dr. Wood stated in a memo that he believed, after consulting with Mr. XX doctors and others, that Mr. XX should not be required to participate in the Combat part of the Davis Dotson Test and that he could not say when he would be ready to take the test. He recommended that Mr. XX be given a low stress position. Mr. XX did not get a second opinion on his overall fitness to take the Combat Test and did not offer any medical documentation or evidence to dispute Dr. Wood's assessment. On XX , you wrote a letter on behalf of Mr. XX to the Fire Department requesting reassignment of Mr. XX as a reasonable accommodation. On XX , Mr. XX was told by the Fire Department that he was terminated from his job. On XX , the Fire Department wrote a letter to you explaining the reasons why Mr. XX was terminated. It stated that Mr. XX was no longer physically or mentally capable of performing as a firefighter and that there were no vacant positions to which he could be reassigned. The Fire Department stated in a letter to us in May 1993 that there were no vacant positions for which Mr. XX would qualify. Analysis We have concluded that the Sea Pines/Forest Branch Fire Department did not discriminate against Mr. XX by terminating his employment. Under the Fire Department's procedures, after Mr. XX failed the Target Test for the third time, the Department physician did not deem Mr. XX fit to take the Combat Test and could not state when he would be able to take the test. Because he was not deemed able to take the Combat Test within six months, Mr. XX was terminated. Dr. Wood made this determination after consulting with Mr. XX other doctors and counselor. The Fire Department followed its 01-00202 -4 procedures in not allowing Mr. XX to re-take the test in six months and terminating him. Mr. XX was provided means to dispute Dr. Wood's assessment by consulting a private physician under the Fire Department procedures, but Mr. XX chose not to follow those procedures. Thus, there is no evidence that Dr. Wood's assessment that Mr. XX no longer met the criteria

to qualify to perform the job of firefighter was incorrect. There was no reasonable accommodation which could be provided to allow Mr. XX to perform the essential functions of the position of firefighter, and he was terminated from his position. The Fire Department did not violate Title II by terminating Mr. XX from his employment. Mr. XX did request reassignment to another job as a reasonable accommodation. According to Dr. Wood's memo, Mr. XX needed to be placed in a low-stress position. In September 1992,t there were no vacant positions for jobs for which Mr. XX qualified. Because there were no vacant positions available within a reasonable amount of time, a reassignment as a reasonable accommodation was not available. The Fire Department did not violate Title II by failing to reassign Mr. XX as a reasonable accommodation. Since the time the complaint was filed, the Sea Pines/Forest Branch Fire Department has adopted a grievance procedure and has written and posted a public notification of rights under the ADA, as required by the regulation. Conclusion Based upon the foregoing, we have determined that the Fire Department did not violate Title II with respect to its treatment of Mr. XX , and we are closing your complaint as of the date of this letter. If Mr. XX is dissatisfied with our determination, he may file a private complaint in the appropriate United States District Court under Title II of the ADA. You should be aware that no one may intimidate, threaten, 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, 5 U.S.C. 552, it may be necessary to release this document and related correspondence and records upon request. However, if such a request is made, we will seek to protect, to the extent provided by law, personal information which, if released, could constitute an unwarranted invasion of privacy.

01-00203 -5 If you have any questions concerning this letter, please feel free to contact Linda King at (202) 307-2231. Sincerely, (SIGNATURE) Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division

cc: John Harter Division Chief Hilton Head Island Fire Rescue Division 01-00204