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LAW REVIEW continued from page 35

based his conclusion " on any fact other
than Keith's deafness. "
As Keith's mother indicated in her affidavit while she was with Plaintiff during
the pre-employment physical, Dr. W.
merely entered the examination room,
reviewed Plaintiff's medical file, and
stated, " He's deaf; he can't be a lifeguard. " Keith's mother then inquired
whether Dr. W. was basing his decision
solely on Plaintiff's deafness. Dr. W.
stated that was the case.
Dr. W. apparently concluded his examination at that point and failed to
determine if Plaintiff could perform the
essential functions of the job, either with
or without reasonable accommodation,
due to his deafness. More significant to
Dr. W.'s cursory examination is the fact
that he has no education, training, or
experience in assessing the ability of a
deaf individual to work as a lifeguard.

As a result, the federal district court
concluded the examining doctor had
" failed to make an individualized inquiry as to whether Keith's disability disqualified him from being a wave-pool
lifeguard. " Although the doctor had failed
to make an individualized inquiry in his
cursory examination of Keith, the court
rejected Keith's assertion that the County
had also failed to produce any evidence
of its own individualized inquiry.
Plaintiff's argument fails to take into account the 2006 junior lifeguard training
and 2007 lifeguard training, in which
Defendants were able to monitor and
observe Plaintiff as a possible lifeguard.
During both lifeguard trainings, Defendants accommodated Plaintiff with an
interpreter/signer. After Plaintiff's completion of the 2007 lifeguard training,
Defendants determined from Dr. W's
examination report, [the aquatics safety
consultant] Ellis and Associates' advice,
and Defendants' employees' combined
knowledge that no offer of employment
would be extended.

Based on this evidence, the federal
district court, therefore, concluded that
Oakland County had conducted an individual determination of whether Keith

36 Parks & Recreation D E C E M B E R

could perform the essential functions of a
wave-pool lifeguard due to his disability.

Otherwise Qualified?
In assessing whether Keith was " otherwise qualified " within the meaning of the
ADA, the federal district court noted that it
" must analyze whether Plaintiff was capable of working as a wave-pool lifeguard
with or without a reasonable accommodation. " In the opinion of the court, Keith
had failed to show he was " otherwise
qualified " without any accommodation.
The issue before the court was, therefore,
whether Keith was " otherwise qualified "
with reasonable accommodations.
As cited by the court, the ADA provides " a covered entity must make reasonable accommodations to the known
physical and mental limitations of an otherwise qualified individual with a disability. " 42 U.S.C. § 12112(b)(5)(A). Further, the
court noted that it is plaintiff's burden to
first show that a proposed accommodation
is objectively reasonable. If so, the burden
then shifts to defendant to show that the
accommodation would " impose an undue
hardship. " 42 U.S.C. § 12112(b)(5)(A).
In this case, Keith had only requested
the accommodation of an interpreter during staff meetings and further classroom
instruction. According to Keith, his cochlear implant would " allow him to hear
people yell, whistles, and other emergency sounds. " Further, Keith asserted
he would have been able to inform Oakland County of his cochlear implant had
the County notified him of any concerns
regarding his ability to fulfill the communication duties of a wave-pool lifeguard.
As noted by the court, Keith did not
challenge " the essential functions of a
wave-pool lifeguard as delineated in the
Water Park Staff Manual. " As described
by the court, these essential job functions required Oakland's wave-pool lifeguards to " perform life-saving duties,
as well as communicate with other lifeguards, patrons, emergency personnel,
and injured persons. "
After examining the evidence in the
record in light of the legal requirements

2 0 1 1 w w w . N R P A . O R G

of the ADA, the federal district court concluded Keith had " presented insufficient
evidence that would allow a reasonable
jury to conclude that Plaintiff may be reasonably accommodated to perform the
essential duties of a wave-pool lifeguard
at Defendants' facility. "
According to the court, it appeared that
Keith was " otherwise qualified " to complete the life-saving duties of a lifeguard,
having completed lifeguard training and
earned his license from Oakland. Nonetheless, with regard to an Oakland wavepool lifeguard, the federal court found
Keith had failed to show that he was " capable of the essential functions that pertain to
communicating with patrons, emergency
personnel, and other lifeguards with reasonable accommodations " :
While Plaintiff's passing of the 2006 junior lifeguard training and 2007
lifeguard training exemplify his ability to
perform life-saving functions, he completed this program with an interpreter/
signer. The interpreter/signer's responsibility was to communicate any spoken
words to Plaintiff during the training.
Although Plaintiff only requested an
interpreter/signer during staff meetings
and further classroom instruction once
employed by Defendants, Plaintiff has
provided insufficient evidence that he
would be able to perform the communication duties of a wave-pool lifeguard
without the accommodation of an interpreter/signer during his entire shift.

Further, the federal district court
found Keith had failed to show that providing him " an interpreter/signer during
only classroom instruction and staff meetings is objectively reasonable. " In so doing, the court cited case law precedent
which had held it was " unreasonable to
accommodate an individual by requiring
an employer to hire an additional person
to assist the individual in his or her job duties. " In this particular instance, the court
found numerous unreasonable modifications would be required, " shifting communication functions to other lifeguards
or staff members on duty. " As noted by
the federal district court, " Courts have

December 2011 - Parks & Recreation

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