From: Kelly Pierce 
Subject: nfb looses suit of blind prison guard
                Friday, March 7, 1997 -- BNA Washington Insider
            Copyright (c) 1997 The Bureau of National Affairs, Inc.
                            (Article No. 40662320)
Disabilities Discrimination
COURT AFFIRMS ADA PROVIDES NO RELIEF
FOR VIRTUALLY BLIND CORRECTIONAL OFFICER
 
   WASHINGTON (BNA) -- A state correctional officer who lost most of her
vision is not entitled to relief under the Americans with Disabilities Act
because she cannot perform the essential functions of the job, the U.S. Court
of Appeals for the Seventh Circuit has ruled.
 
   Affirming summary judgment for the Illinois Department of Corrections, the
court found that even though the warden may have been motivated by an
irrational hostility to blind persons in deciding to fire Bobbi Miller, she
would have been fired anyway because she could only perform two of the many
duties required of correctional officers (Miller v. Illinois Department of
Corrections, CA 7, No. 96-1642, 2/18/97).
 
   Writing for the court, Judge Richard A. Posner said if an employer has
legitimate reasons for requiring that individuals in a particular job
classification rotate through multiple job duties, disabled employees are not
qualified unless they can perform enough of the duties to justify a finding
that they can perform the essential duties.
 
Accident Caused Disability
 
   Miller was seriously injured in a car accident in 1986 and seemed fully
recovered when she was hired by IDOC as a correctional officer in 1988,
according to the court. As a delayed result of the accident, she suddenly
lost most of her vision in both eyes in 1993, and her condition is not
expected to improve. She uses a seeing-eye dog and cannot see well enough to
read but may be able to use a computer with the aid of special technology.
 
   IDOC discharged Miller on the ground she was incapable of performing the
duties of her position. The prison warden allegedly said in an agitated
manner that he did not want a blind person working in his prison and that he
was afraid people would trip over the seeing-eye dog.
 
   Miller accepted the state's offer of a lower-paying job as a residential
care worker at a state school for people with visual impairments but also
sued under the ADA, seeking reinstatement and damages. The U.S. District
Court for the Central District of Illinois granted summary judgment to IDOC
in March 1996 (6 AD Cases 497).
 
Incapable Of Essential Job Functions
 
   On appeal, Posner wrote that even if discriminatory intent entered into
the decision to fire Miller, she cannot obtain reinstatement or damages if
she would have been fired anyway because she was incapable of performing the
essential functions of the job. Miller had the burden of proving her
capability, the court said.
 
   IDOC asserted Miller cannot perform many of the duties that correctional
officers are required to perform, including standing guard, counting inmates,
inspecting for contraband, escorting inmates outside their cells, searching
inmates and visitors, searching for escaped prisoners, and being on 24-hour
call to respond to emergencies.
 
   The only job duties Miller might be able to perform with accommodation,
IDOC argued, are operating the telephone switchboard and serving as armory
officer, which involves issuing guns to officers as needed. Miller sought to
be excused from the duties she could not perform and to be limited to
switchboard and armory duties.
 
   "(I)f an employer has a legitimate reason for specifying multiple duties
for a particular job classification, duties the occupant of the position is
expected to rotate through, a disabled employee will not be qualified for the
position unless he can perform enough of these duties to enable a judgment
that he can perform its essential duties," the Seventh Circuit said.
 
   The purpose of having "multiply able" correctional officers who rotate
through a number of different duty positions is to be able to respond to
unexpected surges in the demand for particular abilities, for example, to
help quell a prison riot, Posner found. "It would not do to have a
correctional officer whose only experience and capability were in operating a
telephone switchboard or issuing weapons," he wrote.
 
Noncorrectional Officer Jobs Not Sought
 
   In correspondence with prison officials, Miller said she "would even be
willing to take the officer's uniform off as long as I could be assigned to a
position within the facility that would be appropriate for my professional
experience and background" and that paid a salary comparable to correctional
officer.
 
   Miller wanted an altered correctional officer job--the same status and pay
without having to perform the full range of duties--and did not seek any
noncorrectional officer prison jobs, the court observed. Posner noted a wage
premium is paid for dangerous and distasteful jobs and that the
noncorrectional officer jobs for which Miller is qualified pay much less.
 
   While employers have a duty to ascertain whether an employee who becomes
disabled might be able to fill another job, the court said, Miller did not
put the prison on notice to explore noncorrectional officer jobs that she
might be able to fill. "Until she applies for such a job, a suit complaining
about the prison's refusal to give it to her is premature," the court said,
adding that it is not too late for her to apply for a noncorrectional officer
job.
 
   Judges Jesse E. Eschbach and Terence T. Evans joined in the opinion.
 
   William C. Gleisner of Milwaukee, Cheryl R. Jansen of Springfield, Ill.,
and Scott C. LaBarre of the National Federation of the Blind in Denver
represented Miller.
 
   State Assistant Attorney General Jan E. Hughes in Chicago represented 

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