Nicholas Keith v. County of Oakland , 703 F.3d 918 ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0011p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
NICHOLAS A. KEITH,
-
Plaintiff-Appellant,
-
-
No. 11-2276
v.
,
>
-
Defendant-Appellee. -
COUNTY OF OAKLAND,
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:10-cv-12026—Lawrence P. Zatkoff, District Judge.
Argued: October 10, 2012
Decided and Filed: January 10, 2013
Before: SUTTON, GRIFFIN, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Donald M. Fulkerson, Westland, Michigan, for Appellant. John J. Lynch,
VANDEVEER GARZIA, P.C., Troy, Michigan, for Appellee. ON BRIEF: Donald M.
Fulkerson, Westland, Michigan, Joey S. Niskar, Bingham Farms, Michigan, for
Appellant. John J. Lynch, Christian E. Hildebrandt, VANDEVEER GARZIA, P.C.,
Troy, Michigan, Keith J. Lerminiaux, OAKLAND COUNTY CORPORATE
COUNSEL, Pontiac, Michigan, for Appellee.
_________________
OPINION
_________________
GRIFFIN, Circuit Judge. Plaintiff Nicholas Keith, a deaf individual, filed the
instant action alleging that defendant Oakland County discriminated against him on the
basis of disability in violation of the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101, et seq., and the Rehabilitation Act of 1973 (“Rehabilitation Act”),
29 U.S.C. § 794, et seq., when it failed to hire him as a lifeguard. The district court
1
No. 11-2276 Keith v. Cnty. of Oakland Page 2
granted Oakland County’s motion for summary judgment. For the reasons that follow,
we hold that genuine issues of material fact exist regarding whether Keith is otherwise
qualified to be a lifeguard at Oakland County’s wave pool, with or without reasonable
accommodation. Accordingly, we reverse the district court’s judgment and remand for
further proceedings consistent with this opinion.
I.
Keith has been deaf since his birth in 1980. When wearing an external sound
transmitter, he can detect noises through his cochlear implant, such as alarms, whistles,
and people calling for him. Because he is unable to speak verbally, he communicates
using American Sign Language (“ASL”).
In 2006, Keith enrolled in Oakland County’s junior lifeguard training course.
Oakland County provided an ASL interpreter to relay verbal instructions to him. The
interpreter did not assist Keith in executing lifesaving tasks. Keith successfully
completed the course.
In 2007, Keith enrolled in Oakland County’s lifeguard training program.
Candidates must pass a basic swim test to participate in the training. During training,
candidates are taught how to enter the water, scan the water for distressed swimmers,
execute basic saves, respond to spinal injuries, and perform CPR. With the assistance
of an ASL interpreter to communicate verbal instructions, Keith successfully completed
the training.
Having received his lifeguard certification, Keith applied for a lifeguard position
at Oakland County’s wave pool. The job announcement required applicants to be at least
sixteen years old and pass Oakland County’s water safety test and lifeguard training
program. The application also contained the following condition of employment: “All
persons hired by Oakland County must take and pass a medical examination from a
county-appointed physician, at no cost to the applicant.”
Katherine Stavale is Oakland County’s recreation specialist. She contacted her
supervisors to ask if she could offer Keith the position. She explained that Keith had
No. 11-2276 Keith v. Cnty. of Oakland Page 3
requested an ASL interpreter to be present at staff meetings and further classroom
instruction. Having received no objection, Stavale extended Keith an offer of
employment, conditioned upon a pre-employment physical. In an email, Stavale told
Keith, “you passed training and you did a good job, so we would like to offer you a part-
time position as a lifeguard.” Stavale asked him to contact her to set up a meeting to
complete his paperwork and schedule his orientation sessions.
Shortly thereafter, Keith was examined by Dr. Paul Work, D.O. When Dr. Work
entered the examination room, he looked at Keith’s medical history and stated, “He’s
deaf; he can’t be a lifeguard.” Keith’s mother asked Dr. Work, “Are you telling me
you’re going to fail him because he’s deaf?” Dr. Work responded, “Well, I have to. I
have a house and three sons to think about. If something happens, they’re not going to
sue you, they’re not going to sue the county, they’re going to come after me.”
In his report, Dr. Work described Keith as “physically sound except for his
deafness.” Dr. Work did not believe that Keith could function independently as a
lifeguard, but he thought that he could be a valuable member of a team if properly
integrated and monitored. Dr. Work approved Keith’s employment as a lifeguard if his
deafness was “constantly accommodated.” However, he did not say whether Keith
could, in fact, be safely accommodated, and he expressed doubt that accommodation
would always be adequate.
Having learned the results of the physical, Stavale placed Keith’s employment
on hold and contacted Wayne Crokus, the client manager at Ellis & Associates. Ellis is
a group of aquatic safety and risk management consultants that provides guidance to
Oakland County regarding its water park facilities and lifeguard training program.
Oakland County follows Ellis’s methodologies to train and test candidates for its
lifeguard openings, but Ellis is not directly involved in the certification and employment
of Oakland County’s lifeguards. Oakland County is responsible for licensing and hiring
its lifeguards.
Stavale told Crokus that she had trained and hired as a lifeguard a profoundly
deaf individual. In response, Crokus expressed concern about whether a deaf individual
No. 11-2276 Keith v. Cnty. of Oakland Page 4
could perform effectively as a lifeguard. He suggested to Stavale that a job-task
analysis be done to determine whether Keith could perform the job with or without
accommodation. Crokus has a background in aquatic safety and lifeguard training, but
he has no education or experience regarding the ability of deaf people to work as
lifeguards, and he did not conduct any research into the issue upon learning about Keith.
He never communicated with Keith, never observed Keith during training, and never
spoke with Dr. Work.
Stavale also corresponded with Richard Carroll, Ellis’s senior vice president.
Carroll suggested that Stavale find out the type of hearing device that Keith used and
assess his ability to detect a distressed swimmer. He suggested that Stavale determine,
under the standards used for all candidates, whether Keith could perform in the actual
work environment at the level outlined in the job description, but he could not provide
a definitive answer without a familiarity with Keith or the facility. Like Crokus, Carroll
has no education, training, or experience regarding the ability of deaf people to work as
lifeguards, and he did not research the issue. At the time of his response, Carroll had
visited Oakland County’s wave pool once during the off season.
After these discussions, Stavale prepared a six-page outline setting forth the
accommodations that she believed could successfully integrate Keith, and she sent it to
Crokus for feedback. Stavale explained:
1. Keith will carry laminated note cards in the pocket of his swim
trunks to communicate with guests in non-emergency situations.
2. Keith does not need to hear to recognize and rescue a distressed
swimmer; experience reveals that distressed swimmers do not cry out for
help.
3. Keith will use his whistle and shake his head “no” to enforce pool rules.
4. Keith will briefly look at other lifeguards on duty when scanning
his zone to see if they enter the pool for a save.
5. Because Keith cannot use the megaphone or radio, another
lifeguard will have this responsibility when Keith is working.
No. 11-2276 Keith v. Cnty. of Oakland Page 5
6. Keith will not work the slide rotation, which should not be a
problem because this is one of the favorite rotations and many
lifeguards like to work more than one slide rotation.
7. The Emergency Action Plan (“EAP”) will be modified,
regardless of whether Keith is scheduled. To initiate the EAP,
lifeguards will be required to signal with a fist in the air, opening
and closing it like a siren. This will accommodate Keith and
improve the effectiveness of the EAP for the entire team.
Crokus questioned Stavale on several of these accommodations and remained
concerned about Keith’s ability to function effectively as a lifeguard. He stated,
“without 100 percent certainty that [the proposed accommodations] would always be
effective, I don’t think you could safely have [Keith] on the stand by himself.”
Ultimately, Stavale and her supervisors decided to revoke the offer of employment.
In 2008, Keith applied for another lifeguard opening, as well as a park attendant
opening. He was not hired for either position. According to Oakland County, Keith was
disqualified from consideration as a lifeguard based on his pre-employment physical in
2007, and his application for the park attendant position was not selected in the “blind
draw process.” This appeal pertains only to the lifeguard position.
Keith filed a complaint in the district court alleging violations of the ADA and
the Rehabilitation Act. Oakland County moved for summary judgment, arguing that
Keith is not “otherwise qualified” to be a lifeguard at its wave pool because he cannot
effectively communicate with other lifeguards, patrons, emergency personnel, and
injured persons. Further, Oakland County argued that hiring an additional lifeguard as
an interpreter is an unreasonable accommodation.
Keith responded that he is “otherwise qualified” for the position and Oakland
County revoked the offer of employment based on unfounded fear and speculation.
According to Keith, he would require an interpreter only during staff meetings and
further classroom instruction, which he argued is a reasonable accommodation. Keith
also complained that Oakland County failed to make an individualized inquiry regarding
No. 11-2276 Keith v. Cnty. of Oakland Page 6
his ability to perform the job or engage in an interactive process to determine whether
he could be reasonably accommodated.
As evidence of his qualifications for the position, Keith provided the testimony
of several experts. Anita Marchitelli has worked with deaf people in the area of
lifeguarding and aquatics for more than thirty years. She is a certified lifeguard training
instructor with the American Red Cross in the areas of lifeguarding, water safety, and
CPR. She is also an associate professor in the physical education and recreation
department at Gallaudet University, the only liberal arts university in the world dedicated
to serving the needs of deaf individuals. She has certified more than 1,000 deaf
lifeguards through the American Red Cross programs. According to Marchitelli, there
have been no reported incidents of drowning or near drowning of any individuals over
whom a deaf lifeguard was responsible. It is her professional opinion that the ability to
hear is unnecessary to enable a person to perform the essential functions of a lifeguard.
In her affidavit, Marchitelli notes that the world record for most lives saved is held by
a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career.
Sheri Garnand is a deaf lifeguard certified by the American Red Cross. It is her
professional opinion that the ability to hear is unnecessary to enable a person to perform
the essential functions of a lifeguard. According to Garnand, distressed swimmers
exhibit visual signs of distress, which a deaf person scanning his or her assigned area can
detect. She believes that deaf lifeguards do not require accommodation to perform the
essential functions of a lifeguard; in her opinion, an ASL interpreter is unnecessary.
Dr. Colleen Noble is a physician specializing in pediatric neurodevelopmental
disabilities and has worked with hearing impaired individuals for over thirty years. It
is Dr. Noble’s opinion that deaf individuals have the potential to be excellent lifeguards.
She stated that, in a noisy swimming area, recognizing a potential problem is almost
completely visually based. Further, she said that individuals who become deaf before
age three have better peripheral vision than hearing individuals. It is her opinion that
Keith meets the criteria to become a lifeguard and his deafness should neither disqualify
him nor require constant accommodation.
No. 11-2276 Keith v. Cnty. of Oakland Page 7
Addressing Oakland County’s motion for summary judgment, the district court
first concluded that Dr. Work failed to make an individualized inquiry regarding whether
Keith’s disability disqualified him from working as a lifeguard at Oakland County’s
wave pool. Nonetheless, the court determined that Oakland County, the ultimate
decision-maker, made an individualized inquiry regarding Keith’s abilities. The district
court also determined that Keith failed to show that he could perform the essential
communication functions of a lifeguard with or without reasonable accommodation. As
such, the district court reasoned that any failure by Oakland County to engage in the
interactive process regarding whether Keith could be accommodated did not establish
a violation of the ADA. Accordingly, it granted summary judgment in favor of Oakland
County. In this appeal, Keith argues that the district court erred when it concluded as
a matter of law that (1) Oakland County made an individualized inquiry regarding
Keith’s abilities; (2) he is unqualified to be a lifeguard at Oakland County’s wave pool;
(3) accommodating Keith would be unreasonable; and (4) any failure to engage in the
interactive process was inconsequential because no reasonable accommodation was
possible.
II.
We review de novo a district court’s grant of summary judgment. Smith v.
Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is proper “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We consider all facts
and inferences drawn therefrom in the light most favorable to the nonmovant.” City of
Wyandotte v. Consol. Rail Corp., 262 F.3d 581, 585 (6th Cir. 2001). Claims brought
under the Rehabilitation Act are reviewed under the same standards that govern ADA
claims. See Holiday v. City of Chattanooga, 206 F.3d 637, 642 n.1 (6th Cir. 2000).
III.
The ADA makes it unlawful for an employer to “discriminate against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). The ADA defines
“discriminate” to include the failure to provide reasonable accommodation to an
No. 11-2276 Keith v. Cnty. of Oakland Page 8
otherwise qualified individual with a disability, unless doing so would impose an undue
hardship on the employer’s business. Id. § 12112(b)(5). To establish a prima facie case,
a plaintiff must show that he is disabled and otherwise qualified for the position, either
with or without reasonable accommodation. Kiphart v. Saturn Corp., 251 F.3d 573, 581
(6th Cir. 2001). Once the plaintiff establishes a prima facie case, the burden shifts to the
defendant to show that accommodating the plaintiff would impose an undue hardship on
the operation of its business. Id.The parties do not dispute that Keith is disabled within the meaning of the ADA
or that Oakland County rescinded the offer of employment because of his disability. The
issues in dispute are whether Oakland County made an individualized inquiry, whether
Keith is otherwise qualified for the position in question with or without reasonable
accommodation, and whether Oakland County engaged in the interactive process.
A. Individualized Inquiry
As a threshold matter, “[t]he ADA mandates an individualized inquiry in
determining whether an [applicant’s] disability or other condition disqualifies him from
a particular position.” Holiday, 206 F.3d at 643. A proper evaluation involves
consideration of the applicant’s personal characteristics, his actual medical condition,
and the effect, if any, the condition may have on his ability to perform the job in
question. Id. This follows from the ADA’s underlying objective: “people with
disabilities ought to be judged on the basis of their abilities; they should not be judged
nor discriminated against based on unfounded fear, prejudice, ignorance, or mythologies;
people ought to be judged on the relevant medical evidence and the abilities they have.”
Id. (internal quotations omitted). The ADA requires employers to act, not based on
stereotypes and generalizations about a disability, but based on the actual disability and
the effect that disability has on the particular individual’s ability to perform the job. Id.The district court properly determined that Dr. Work failed to make an
individualized inquiry. After Dr. Work entered the examination room and briefly
reviewed Keith’s file, he declared, “He’s deaf; he can’t be a lifeguard.” Dr. Work made
no effort to determine whether, despite his deafness, Keith could nonetheless perform
No. 11-2276 Keith v. Cnty. of Oakland Page 9
the essential functions of the position, either with or without reasonable accommodation.
Indeed, Dr. Work has no education, training, or experience in assessing the ability of
deaf individuals to work as lifeguards. Dr. Work’s cursory medical examination is
precisely the type that the ADA was designed to prohibit. See, e.g., Holiday, 206 F.3d
at 644 (reasoning that questions of fact remained regarding whether the physician
disqualified the plaintiff from being a police officer based on his HIV status rather than
investigating whether having HIV actually impeded his ability to withstand the rigors
of police work).
In addition, although not addressed by the district court, we question whether
Ellis, through its representatives, made an individualized inquiry regarding Keith’s
ability to perform the job. Ellis’s representatives never spoke with Dr. Work, they never
met Keith, and they never allowed Keith an opportunity to demonstrate his abilities.
Although knowledgeable in aquatic safety, they have no education, training, or
experience regarding the ability of deaf individuals to work as lifeguards. Indeed, the
representatives testified that they could not provide an opinion regarding Keith’s ability
to perform the essential functions of the position without seeing him in the actual work
environment with the proposed accommodations in place. It is also concerning that,
when corresponding with Stavale about ways to incorporate Keith into the lifeguard
team, an Ellis representative asked whether Keith would be able to perform perfectly
“100 percent of the time.” As Stavale acknowledged, that is an impossible standard to
expect of any lifeguard. Individuals with disabilities cannot be held to a higher standard
of performance than non-disabled individuals. See 42 U.S.C. § 12112(b)(3)(A)
(prohibiting employers from “utilizing standards, criteria, or methods of administration
. . . that have the effect of discrimination on the basis of disability”).
Nonetheless, the district court concluded that Oakland County, the ultimate
decision-maker, made an individualized inquiry. We do not disagree with this
conclusion. Keith’s abilities were observed during lifeguard training, accommodations
were proposed to integrate Keith into the lifeguard team, and both staff and management
were on board with the plan to hire Keith. That being the case, we question what
No. 11-2276 Keith v. Cnty. of Oakland Page 10
changed? Did Oakland County alter its assessment based on Dr. Work’s report and the
advice of Ellis’s representatives? If so, did Oakland County’s individualized inquiry
satisfy the ADA’s mandate? Because it strikes us as incongruent with the underlying
objective of the ADA for an employer to make an individualized inquiry only to defer
to the opinions and advice of those who have not, we direct the district court to consider
these questions on remand. See Holiday, 206 F.3d at 645 (reasoning that employers
cannot escape liability under the ADA merely by mechanically relying on the medical
opinions and advice of third parties).
B. “Otherwise Qualified”
Whether the ability to hear is an essential function of a lifeguard position has not
been addressed by this court and, as far as we can tell, no court has squarely addressed
it. Some insight is found in Schultz v. YMCA, 139 F.3d 286 (1st Cir. 1998), a case
involving a deaf individual’s claim for emotional distress damages under the
Rehabilitation Act. In Schultz, the YMCA revoked the plaintiff’s lifeguard certification
for failure to satisfy its certification requirement that lifeguards be able to hear noises
and distress signals. Id. at 287–88.
The court explained that “[t]he disability statutes were meant to counter mistaken
assumptions, no matter how dramatic or widespread.” Id. at 289. Thus, according to the
court, despite the prevailing view that the ability to hear a distress call is a requirement
for a lifeguard, “[w]hether the supposition is correct is a different question.” Id. at 289.
In light of the opinions of the plaintiff’s experts that “the ability to hear contributes little,
if anything, to the performance of lifeguarding functions,”1 the court expressed
uncertainty about whether the assumption on which the hearing requirement was based
had any support in fact. Id. at 289. Indeed, the court thought that the plaintiff “might
have enough to reach a jury” in a conventional employment discrimination claim had he
been denied a lifeguard position on account of his deafness, as here. Id. But by merely
granting certifications, the YMCA was not hiring employees or establishing conditions
1
One of the experts in Schultz is Anita Marchitelli, who has offered an affidavit in this case.
No. 11-2276 Keith v. Cnty. of Oakland Page 11
for obtaining work as a lifeguard. Id. And although the YMCA, as the recipient of
federal funds, was obligated under the Rehabilitation Act not to discriminate on the basis
of disability, the court considered it “a difficult question” whether the YMCA’s
requirements for certification must be “fully correct, and not merely colorable.” Id.Ultimately, assuming arguendo that a hearing requirement for lifeguards might
constitute unlawful discrimination, the court affirmed the district court’s grant of
summary judgment in favor of the YMCA because the circumstances of the case did not
justify an award of emotional distress damages. Id. at 291. Thus, although suggesting
how it might rule in a case such as this, the suggestion is merely dicta.
Without any authority directly on point, we turn to the statutory text and
accompanying regulations for guidance on the issue whether a deaf individual may be
considered “otherwise qualified” for lifeguarding within the meaning of the ADA. We
begin with the language of the statute itself. Walton v. Hammons, 192 F.3d 590, 593–94
(6th Cir. 1999). We may also rely on the regulations interpreting the ADA, which we
assume are valid unless contested. Knapp v. City of Columbus, 192 F. App’x 323, 328
(6th Cir. 2006).
As defined in the statute, an individual is “otherwise qualified” if he or she can
perform the “essential functions” of the job with or without reasonable accommodation.
42 U.S.C. § 12111(8). The ADA instructs, “consideration shall be given to the
employer’s judgment as to what functions of a job are essential, and if an employer has
prepared a written description before advertising or interviewing applicants for the job,
this description shall be considered evidence of the essential functions of the job.” Id.According to the regulations, “essential functions” refer to job duties that are
“fundamental” rather than “marginal.” 29 C.F.R. § 1630.2(n)(1). A job function may
be considered essential because: (1) the position exists to perform that function; (2)
there are a limited number of employees available among whom the performance of that
job function can be distributed; or (3) the function is highly specialized so that the
incumbent in the position is hired for his or her expertise or ability to perform the
particular function. Id. § 1630.2(n)(2). Factors to consider when determining whether
No. 11-2276 Keith v. Cnty. of Oakland Page 12
a job function is essential to the position include: (1) the employer’s judgment; (2) the
written job description; (3) the amount of time spent performing the function; (4) the
consequences of not requiring performance of the function; (5) the work experience of
past incumbents of the position; and (6) the current work experience of incumbents in
similar jobs. Id. § 1630.2(n)(3). Whether a job function is essential is a question of fact
that is typically not suitable for resolution on a motion for summary judgment. Kiphart,
251 F.3d at 585.
In this case, Stavale testified regarding the need for lifeguards to effectively
communicate while on the job. As Oakland County’s representative, her judgment is
entitled to deference. Further, the job announcement indicates that summer lifeguards
are required to supervise water activities, enforce safety rules, maintain water areas, and
teach swim lessons. To the extent that these job duties necessarily require
communication, the description provides evidence that communicating is an essential
function of being a lifeguard at Oakland County’s wave pool. For the purposes of our
analysis, this much can be presumed.
With regard to supervising water activities and lifesaving, Keith has presented
evidence from which a jury could reasonably find that he can communicate effectively
despite his deafness. Like other lifeguards, Keith can adhere to the “10/20 standard of
zone protection,” a scanning technique taught to lifeguards in which they must scan their
entire zone every ten seconds and be able to reach any part of their zone within twenty
seconds. This method is purely visual. Further, by passing Oakland County’s lifeguard
training program and earning his lifeguard certification, Keith demonstrated his ability
to detect distressed swimmers, which several experts testified is almost completely
visually based.
In addition to communicating with distressed swimmers, there is evidence that
Keith can effectively communicate with other lifeguards during lifesaving. Because he
cannot hear another lifeguard’s whistle blow before going in for a save, as a modest
modification, he could briefly look at the other lifeguards when scanning his zone.
No. 11-2276 Keith v. Cnty. of Oakland Page 13
Likewise, Keith has presented evidence that he can enforce safety rules. Verbal
enforcement is usually impractical in a noisy water park, and most lifeguards rely on
their whistle and various physical gestures, including shaking their head “no” for patrons
to stop engaging in horseplay, motioning their hand backward for a patron to get behind
the red line, and signaling the number one with their finger for “one person per tube.”
Keith can use these same methods of enforcement.
Keith has also presented evidence that he can communicate effectively during
emergencies with a modification to the EAP. To activate the EAP, lifeguards would
signal with a fist in the air, opening and closing their fist in repetition. According to
Stavale, this would improve the EAP for everyone, not just Keith. It would allow other
lifeguards and staff to see the EAP visually if they are not in a position to hear it. Once
activated, other lifeguards who are required to maintain their position would put their fist
in the air and make the same signal.
Further, Keith has presented evidence that he can respond to patrons who
approach him, at least at a level that may be considered essential for a lifeguard. He
would carry a few laminated note cards in the pocket of his swim trunks with basic
phrases such as, “I am deaf. I will get someone to assist you. Wait here.” He can also
provide first aid in situations in which he can see the ailment requiring attention.
Although there may be situations in which verbal communication is necessary,
attendants are posted throughout the water park to assist patrons with basic needs and
inquiries, suggesting that this is not an essential function of lifeguards, or at least
reasonable minds could differ on this point. In addition, staff members are required to
respond whenever a whistle is blown to signal a save.
Perhaps the most compelling evidence that Keith is “otherwise qualified” comes
from his experts who have knowledge, education, and experience regarding the ability
of deaf individuals to serve as lifeguards. They all opine that the ability to hear is
unnecessary to enable a person to perform the essential functions of a lifeguard. The
world record for most lives saved is held by a deaf man, Leroy Colombo, who saved
over 900 lives in his lifeguarding career. One also cannot ignore that the American Red
No. 11-2276 Keith v. Cnty. of Oakland Page 14
Cross certifies deaf lifeguards, and Gallaudet University, the only liberal arts university
in the world dedicated to serving the needs of deaf individuals, has a lifeguard
certification program.
In light of this evidence, we hold that reasonable minds could differ regarding
whether Keith is “otherwise qualified” because he can perform the essential
communication functions of a lifeguard. The district court erred when it decided that
Keith’s deafness disqualified him from the position as a matter of law.
C. “With or Without Reasonable Accommodation”
When accommodation is necessary to enable a plaintiff to perform the essential
functions of the position in question, it is the plaintiff’s burden to propose an
accommodation that is “objectively reasonable.” Kleiber, 485 F.3d at 870. In defining
what is reasonable, this court “has described the employee’s initial burden on this issue
as showing ‘that the accommodation is reasonable in the sense both of efficacious and
of proportional to costs.’” Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183
(6th Cir. 1996) (quoting Vande Zande v. State of Wisconsin Dep’t of Admin., 44 F.3d
538, 543 (7th Cir. 1995)). The employer can then “escape liability if he can carry the
burden of proving that a disability accommodation reasonable for a normal employer
would break him.” Vande Zande, 44 F.3d at 543. As stated by other circuits, the
reasonable accommodation inquiry asks whether an accommodation “is reasonable in
the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed
by the plaintiff’s preferred accommodation in the context of the particular [employer’s]
operations.” Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993); accord Riel v. Elec.
Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996). The reasonableness of a requested
accommodation is generally a question of fact. Haschmann v. Time Warner Ent. Co.,
L.P., 151 F.3d 591, 601 (7th Cir. 1998).
Keith argues the modifications to Oakland County’s policies, as outlined above,
are objectively reasonable. There is evidence that such modifications would allow Keith
to effectively communicate while on duty (i.e., the accommodation is efficacious) at
little or no cost to Oakland County (i.e., the accommodation is proportional to costs).
No. 11-2276 Keith v. Cnty. of Oakland Page 15
Oakland County raises the valid concern that other employees may have to shoulder
extra duties because of Keith’s disability, such as following through with certain patron
inquiries or first aid needs. But this does not, standing alone, entitle Oakland County to
summary judgment. The ADA includes “job restructuring” among its enumeration of
reasonable accommodations. 42 U.S.C. § 12111(9)(B). And although the ADA does not
require the shifting of essential functions, the ADA “require[s] an employer to
restructure the marginal functions of a job as a reasonable accommodation.” Holbrook
v. City of Alpharetta, 911 F. Supp. 1524, 1542 (N.D. Ga. 1995); see also Benson v.
Northwest Airlines, 62 F.3d 1108, 1112 (8th Cir. 1995) (stating that reasonable
accommodation may “involv[e] reallocating the marginal functions of a job”).
The district court’s reliance on Bratten v. SSI Servs., Inc., 185 F.3d 625, 632
(6th Cir. 1999), is misplaced. The plaintiff in Bratten was an automotive mechanic, an
essential function of which was to perform lifting tasks. Id. at 632. Accommodating the
plaintiff would have required other employees to perform as much as twenty percent of
the plaintiff’s lifting duties, which the court sensibly indicated would be unreasonable.
Id. at 632–33. In this case, however, Keith presented evidence that he can perform the
essential communication duties of a lifeguard (e.g., detecting and rescuing distressed
swimmers, enforcing pool rules, activating the EAP, performing CPR) through
modifications that do not require shifting responsibility onto other lifeguards. See
Benson, 62 F.3d at 1112. Further, there is no suggestion that the proposed shift in
responsibilities would even approach the extent of reallocation in Bratten. Viewing the
evidence in the light most favorable to Keith, a reasonable jury could find that the
proposed modifications to Oakland County’s policies are objectively reasonable.
Keith also presented evidence that providing an interpreter during staff meetings
and further classroom instruction is objectively reasonable.2 His successful completion
2
Keith did not request an interpreter while on duty, and several experts testified that an interpreter
is unnecessary to enable a deaf individual to perform the essential functions of a lifeguard. The suggestion
by the district court and Oakland County that Keith would require an interpreter during his entire shift
seems to be based on the opinions of Dr. Work and the representatives at Ellis, none of whom apparently
have direct knowledge, education, or experience regarding the ability of deaf individuals to work as
lifeguards.
No. 11-2276 Keith v. Cnty. of Oakland Page 16
of Oakland County’s junior lifeguard and lifeguard training courses demonstrates that
providing an ASL interpreter is efficacious during classroom instruction and similar
settings, and considering that he would require an interpreter only on occasion and could
function independently while on duty, the benefit of the interpreter would appear to be
proportional to costs.
Moreover, the ADA provides that “reasonable accommodation” may include “the
provision of qualified readers or interpreters.” 42 U.S.C. § 12111(9). The inclusion of
interpreters among the list of enumerated reasonable accommodations suggests to us that
the provision of an interpreter will often be reasonable, particularly when the interpreter
is needed only on occasion, in this instance, just for staff meetings and training. In fact,
there are numerous cases in which courts have found that the provision of an interpreter
during staff meetings and training sessions presented a question of fact for the jury on
the issue of reasonableness. E.g., EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103,
1111–13 (9th Cir. 2010) (question of fact remained regarding whether the employer
failed to provide the deaf plaintiff a reasonable accommodation because it did not
provide him with a sign language interpreter for certain staff meetings, disciplinary
sessions, and training); EEOC v. Fed. Express Corp., 513 F.3d 360, 364–70 (4th Cir.
2008) (jury found by a preponderance of the evidence that FedEx violated the ADA by
denying the deaf plaintiff’s requests for an ASL interpreter during meetings, training,
and other events); EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1246 (10th Cir. 1999)
(the deaf plaintiff established a prima facie case where he showed that the employer
refused to provide an interpreter at staff meetings and training sessions).
In our view, the district court should not have relied on Steward v. Daimler
Chrysler Corp., 533 F. Supp. 2d 717 (E.D. Mich 2008). Steward involved an assembly
line worker who requested an assistant to accommodate her carpal tunnel syndrome. Id.at 720–22. The court held that such an accommodation was unreasonable because it was
“equal to eliminating an essential function of the job.” Id. at 722. Here, however, Keith
has not asked for an assistant while on duty, and providing an interpreter on a limited
basis for staff meetings and further classroom instruction would not effectively eliminate
No. 11-2276 Keith v. Cnty. of Oakland Page 17
an essential job function. Viewing the evidence in the light most favorable to Keith, a
reasonable jury could find that providing an ASL interpreter during staff meetings and
further classroom instruction is objectively reasonable. And because Oakland County
has not argued, much less conclusively shown, that providing the accommodation would
impose an undue hardship on the operation of its business, summary judgment was
inappropriate. See 42 U.S.C. § 12111(10) (defining “undue hardship”).
D. Interactive Process
Finally, we turn to the ADA’s requirement that an employer engage in the
interactive process. The duty to engage in the interactive process with a disabled
employee is mandatory and “requires communication and good-faith exploration of
possible accommodations.” Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 871 (6th Cir.
2007); see also 29 C.F.R. § 1630.2(o)(3). “The purpose of this process is to ‘identify the
precise limitations resulting from the disability and potential reasonable accommodations
that could overcome those limitations.’” Kleiber, 485 F.3d at 871 (quoting 29 C.F.R.
§ 1630.2(o)(3)).
Keith argues that Oakland County failed to contact or otherwise interact with him
before revoking the offer of employment, despite its knowledge that his deafness would
require accommodation. According to Keith, had Oakland County engaged in the
interactive process, it would have learned that Keith can detect loud noises through his
cochlear implant if he wears an external sound transmitter while on duty, which may
have alleviated some of its concerns. In addition, had Oakland County communicated
with Keith, he could have referred Oakland County to various individuals with expertise
regarding the ability of deaf individuals to work as lifeguards, which may have dispelled
unfounded fears and resulted in a more informed decision. Finally, Keith could have
clarified his limited need for an ASL interpreter during staff meetings and further
classroom instruction. Essentially, Keith complains that Oakland County failed to give
him a fair opportunity to respond to the concerns surrounding his employment.
The district court did not reach the merits of this argument because “[t]he Sixth
Circuit follows the view that a failure to engage in the interactive process is not an
No. 11-2276 Keith v. Cnty. of Oakland Page 18
independent violation of the ADA.” Citing Bretfielder v. Leis, 151 F. App’x 379, 386
(6th Cir. 2005). The plaintiff must show that a reasonable accommodation was possible.
Id. According to the district court, because Keith failed, as a matter of law, to propose
an accommodation that was objectively reasonable, any failure by Oakland County to
engage in the interactive process did not constitute a violation of the ADA. This
conclusion is erroneous because it rests on an incorrect premise. Because we conclude
that Keith has met his burden to show that a reasonable accommodation was possible,
at least sufficient to survive summary judgment, we ask the district court to address the
merits of this argument on remand.
IV.
For these reasons, genuine issues of material fact remain regarding whether Keith
is otherwise qualified to be a lifeguard at Oakland County’s wave pool, with or without
reasonable accommodation. We therefore reverse the district court’s grant of summary
judgment in favor of Oakland County and remand for further proceedings consistent with
this opinion. On remand, the district court is also directed to address whether Oakland
County violated the ADA’s individualized inquiry mandate by relying on the advice and
opinions of third parties and failed to engage in the interactive process.