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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legal 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

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alternative 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
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would 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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