_____________ No. 95-2819

_____________ Jo Anne Allison, * * Plaintiff-Appellee, * Appeal from the United States * District Court for the v. * Western District of Missouri. * Department of Corrections; Dora * B. Schriro, Director, * Department of Corrections; * George Lombardi, Director, * Division of Adult Institutions; * Mike Groose, Superintendent, * Jefferson City Correctional * Center, * * Defendants-Appellees. *

_____________ Submitted: March 13, 1996 Filed: August 30, 1996

_____________ Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge.
Jo Anne Allison brought this action alleging claims of discrimi nation on the basis of disability in violation of the A mericans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12112, and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794. The individual defendants (Dora B. Schriro, Di rector of the Missouri Department of Corrections; George Lombardi , Direct or of Adult Institutions; and Mike Groose, Superintendent of th e Jefferson City Correc tional Center) appeal the district court's denial of their motion for summary judgment based on qualified immunity. We reverse

.

### 2 I.

Jo Anne Allison is a former employee of the Missouri Department o f Corrections, where she served the Department as a Correctional Officer I (CO I) . The state merit system defines the CO I job classification , stat ing that a CO I "performs a variety of assignments involving th e supervision, control and treatment of inmates in a state adult correctiona l facili ty." (Appellants' App. at 94.) The definition offers a
none xhaustive list of work examples that require a CO I, among othe r things, to work in al l parts of the prison, to "[s]upervise[] movement of inmates inside and outside the facility," and to "take[] required action during emergencies to prevent escapes and suppress disorders." ( Id. )

On May 13, 1992, Allison injured her back at work. In July 1992 , after exhausting her sick leave, Allison took "leave without pay" status because she was physically unable to return to work. Following a fusion of her cervical spine and a period of rehabilitation, her physicia n reported to the Depar tment that Allison could return to work in a control
roo mposition as of January 25, 1993. Allison's physician specificall y noted, however, that she should not work in com bat or conflict situations where she might have to restrain an inmate.

Given All ison's medical restrictions, George Lombardi, the Director of Adu lt Institutions, advised Allison that she would be terminate d effective February 2, 1993, unless she could obtain a full release from he r doctor that would allow her to perform all of th e duties listed for the CO I classification. Al lison never received a full release from her doctor, and the D epartment did not allow her to return to work with limitation s that would prevent he r from performing all of the duties required of a CO I, which include the ability to maintain physical control of inmates i n conflict situations. The Department of Corrections terminated Allison's employment on February 2, 1993.

### 3 In October 1993, Allison filed an application for social securit y benefits, claiming th at she was then totally disabled. On March 2, 1994, the Soc ial Security Administration denied her application, finding a s follows: "We realize you are unable to work at the present time, but you should recover withintwelve months of October 1, 1993, to return to your past job as a correction officer." (Appellants' App. at 463.) Th e Missour i State Employees Retirement System allowed Allison to receiv e disability benefits without any adversarial proceeding.

In August 1994, Allison brought this action against the Departmen t of Corrections, two i ndividual department and division directors, and the superintendent of the facility where she was employed (Schriro, Lombardi, and Groose), allegingworkplace discrimination on the basis of disability and failure to accommodate in violation of the A mericans with Disabilities Act of 1990, 42 U.S.C. § 12112; Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; and the Missouri Human Rights Act, Mo. Ann. Stat. § 213.055. 1(1). Specifically, Allison asserted that even with her physical restrictions, she was otherwise qualified to perform all of the duties required of a CO I that are necessary while stationed only in the contr ol room or the guard towers. The defendants moved for summar y judgment, asserting that (1) Allison is not "otherwise qualified" within the me aning of the ADA because (a) she previously stated that she i s totally disabled and she should be judicially estopped from denying it now , and (b) she cannot pe rform the essential job functions of a CO I; (2) she is not entitled to compensatory or punitive damages; (3) Eleventh Amendmen t immunity bars jurisdiction of the pendent state claim; and (4) th e individual defendants are entitled to qualified immunity from suit. The distr ict court granted summary judgment in part, dismissing the pendent Missouri Huma n Rights Act count on Eleventh Amendment grounds and concluding that Allison is not entitled to

### 4

puni tive damages. The district court denied summary judgment on th e remaini ng issues. Relevant to this appeal, the district court denie d
summaryjudgment to the individual defendants on the basis of qualifie d immunity, concluding that material issues of fact existed on the issue of whether a reasonable official in the defendants' position would have known that the act of terminating Allison would violate her rights.

The individual defendants appeal the district court's denial o f summary judgment on their claim of qualified immunity.

II.
We initially pause to consider our j urisdiction to hear this appeal. A district court's de nial of qualified immunity is immediately appealable

as a final decision under the collateral order doctrine where "(1) th e defend ant [i]s a public official asserting a defense of `qualifie d immunit y,' and (2) the issue appealed concern[s], not which facts th e parties might be able to prove, but, rather, whether or not certain given facts show[] a violation of `clearly established ' law." Johnson v. Jones , 115 S. Ct. 2151, 2155 (1995) (quoting Mitchell v. Forsyth , 472 U.S. 511, 528 (1985)).

Allison c ontends that we lack jurisdiction over this appeal because the district court denied summary judgment on th e basis of disputed issues of fact. See id. at 2153 (holding that a determination of whether a triab le issue of fact exists in the pretrial record is not immediatel y appealable). To the contrary, the individual defendants contend that the onlyissue in this appeal is a question of law. See id. at 2156 (noting that a denial of qualified immunity is immediately appealable so long as it turns on an issue of law; namely, "the purely legal issue [of] what law

was `c learly established'"). The district court denied the individua l defendants' claims of qualified immunity, stating,

### 5

"[t]his court cannot say that there is no genuine issue of material fact

as to whether a reasonable official would have known that their allege d actions violated plaintiff's rights." (Appellants' Addend. at 12.)
The crux of the individual defendants' argument is that their a ctions
were reasonable given their knowledge at the time of Allison's termination

. This issue is immediately appealable upon the denial of a qualifie d immunity claim. The Supreme Court has explained that " Johnsonpermits [a pub lic official] to claim on appeal that all of the conduct which th e Di strict Court deemed sufficiently supported for purposes of summar y judgme nt met the Harlow [v. Fitzgerald] standard of `objective lega l reasonableness.'" Be hrens v. Pelletier , 116 S. Ct. 834, 842 (1996). See also Harlow v. Fitzge rald , 457 U.S. 800, 818 (1982) (stating the standard of objectively reasonable conduct). Accordingly , we conclude that we have juris diction to consider the legal question of whether, in view of th e facts that the district court deemed sufficiently supported for summar y jud gment purposes, the individual defendants' conduct was objectivel y reasonable given their knowledge and the clearly established law.

To the extent the individual defendants assert issues concernin g what fa cts Allison may or may not be able to prove at trial, we lac k jurisdi ction to consider them in this qualified immunity appeal. Fo r instan ce, we do not have jurisdiction to consider the individua l defendants' arguments regarding allegedly conflicting statements made by Allison in a social security application and an affidavit. Because both statements were made after Allison was terminated, they are not relevant to the qualified immunity issue -- whether the i ndividual defendants acted reasonably given their knowledge at the time of her discharge. We likewis e lack jurisdiction to review the district court's determination tha t material issues of fact remain for trial on the merits of Allison's claims , such as whether she is an otherwise

### We have held that for claims arising unde r the Rehabilitation 1 

### Act, public officials are entitled to qualified immunity fro m li abilityunless they violated an employee's clearly establishe d rights under the Act and reasonably should have known they wer e do ing so. Lue v. Moore , 43 F.3d 1203, 1205 (8th Cir. 1994). W e ha ve not had occasion to specifically determine whether publi c offi cials are entitled to qualified immunity under the ADA

. Allison included one brief point contending that there is a question of whether qualified immunity is available in the context of t his case. In the same breath, however, she argued tha t individual liability is implie d because the doctrine of respondeat superior applies under the Acts. At oral argument, Allison modi fied her argument, claiming for the first time that the ADA does not provide a basis for ind ividual liabil ityso there is no need for or purpose to be served b y app lying qualified immunity in this context. See Mason v
. Stalli ngs , 82 F.3d 1007, 1009-1010 (11th Cir. 1996) (holdin g qualified immunity was not designed for cases such as those arising under the ADA because the ADA does not provide for individua l liability) (decided after oral arguments in Allison's case and not submitted to this court by the parties). The parties did no t thoroughlybrief or argue this issue, and there is no indicatio n that All ison raised it before the district court. The thrust o f the arguments in this appeal concern whether the individua l defendants are entitled to qua lified immunity, not whether the ADA provides for individual liability. Hence, we decline to address, and save for another day, the issue of whether the ADA provi des for individual liability. It is sufficient for this appeal to not e that Allison has clearly sued these defendants in their indi vidual, as well as official, capacities (Appellants' App. at 12); and i f individual liability is possible, then qualified immunity sh ould be an available defense for public officials in the ADA context , as it is under the Rehabilitation Act.
6 qualified individual within the meaning of the relevant Acts and whether the ability to physically restrain inmates is anessential function of the CO I job classification. These issues will be resolved at trial and are appealable only after a final judgment has been rendered.

We now co nsider the merits of this limited appeal, which is whether the individual defendants are entitle d to qualified immunity. Government 1 officials are entitle d to qualified immunity when "their conduct does not violate clearly estab lished statutory or constitutional rights of which a reasonable person would have

### 7

known." Harlow , 457 U.S. at 818. "[W]e must ask whether that law could have been violated given the information available to the defendants at th e time." Reece v. Groose , 60 F.3d 487, 491 (8th Cir. 1995). We make this determination in view of the conduct that the district court deeme d suffic ientlysupported for purposes of summary judgment, and where th e distric t court did not identify the particular conduct that it deeme d adequately supported, we view the facts in the l ight most favorable to the nonmoving party. Behrens , 116 S. Ct. at 842 (citing Johnson , 115 S. Ct. at 2159).
The clearly established law for this case stems from the ADA and the Reha bilitation Act (the Acts). Because the same basic standards an d defini tions are used under both Acts, cases interpreting either ar e applicable and interchangeable for purposes of o ur discussion. See Wooten
v. Farm land Foods , 58 F.3d 382, 385 n.2 (8th Cir. 1995); Vande Zande v

. Wisconsin Dep't of Admin. , 44 F.3d 538, 542 (7th Cir. 1995). An employer withi n the definition of each Act violates the Acts when that employe r discrimi nates on the basis of a disability by, among other things , discharging an employee who is an otherwise "qualified individual with a disability." 42 U.S.C. § 12112(a); 29 U.S.C. § 794(a). The Acts and thei r implementing regulations provide specifically th at discrimination includes an employer's act of not making "reasonable accommodations" for the known limitat ions of an "otherwise qualified individual with a disability, " unless such accommodation would impose an "undue hardship" on the business

. 42 U.S.C § 12112(b)(5)(A).

Alliso n claims she was dismissed from her job as a CO I "when sh e advised her supervisors that she had physical limitations resulting from
a work- related spinal injury, had permanent medical restrictions fro m involvement in inmate combat or conflict situations, and would need a n accommod ation to be able to perform the essential functions of he r pos ition." (Appellee's Br. at 6.) Allison requested the accommodatio n that she be permanently placed

### 8

in cert ain CO I posts, such as the guard tower or control center, wher e physical control of inmates is not routinely required. The Departmen t argued that the ability to restrain inmates is an essential function of al l CO I positions because the Department needs the flexibility to transfer CO I's among different posts and because there always exists the potential fo r
an emergency situation where the Department would need all available CO I' s to aid in restraining inmates. The district court concluded that there wa s
a genui ne issue of material fact in dispute concerning whether inmat e control is an essential function of all CO I posts and whether th e Department could reasonably accommodate Allison's disability.

In i ts qualified immunity determination, the district cour t specificallycredited the following undisputed evidence: The individual defendants, high rank ing employees of the Department of Corrections, were
awar e of the ADA and the Rehabilitation Act and made definite polic y decisi ons regarding them. Director Lombardi testified that for severa l ye ars the Department has had a policy to dismiss any CO I who is no t capa ble of performing 100 percent of the required duties of that jo b cl assification. All directors, including the individual defendants , endorsed the policy. The directors decided not to change the policy even though they knew that in 1994, a jury had found in favor of a CO I who had been dismissed after attempting to return to work with a physica l limitation. Further, in 1992, the Missouri Huma n Rights Commission (MHRC) twice ordered the Department of Corrections to s top discriminating against individuals with disabilities in the employment context.

Accep ting these factual premises, we conclude that the individua l defendants acted reasonably in light of the clea rly established law at the tim e of Allison's termination in 1993. The 1994 jury decision has n o bearing on the qualif ied immunity determination because it occurred after Allison's employment was

### 9

term inated. The two 1992 MHRC orders to stop discriminating agains t individuals with disa bilities pertained to situations very different from Allison's. Unlike this case, neither of the incidents triggering MHRC's orders involved an individual whose disability actually affected tha t individual's ability to perform 100 percent of t he duties required for the classification of CO I. Allison's disability, by express restriction from her doctor, prohibited her from being involved in situations that migh t require her to control or combat inmates. Thus, the prior MHRC order s would not give the in dividual defendants reason to believe that they must accommodate an individual who is unable to restrain inmates.

Furth ermore, and most importantly, the clearly established law i n 1993 did not indicate that it is a violation of the Acts to discharge a correctional officer who is unable to physically restrain inmates. To the contrary, the Supreme Court had indicated that t he Rehabilitation Act does not re quire an employer to disregard the disabilities of handicappe d individuals. See Southeastern Community College v. Davis , 442 U.S. 397, 405 (1979). The Court explained that individuals must be qualified for th e job "in s pite of" a disability, not "except for" the limitations of th e disabilit y. Id. at 406. Applying this Supreme Court precedent, w e expressly stated in 1984 that an individual with a disability "may b e required to meet legitimate physical qualificati ons essential to the job." Simon v. St. Louis County, Mo. , 735 F.2d 1082, 1084 (8th Cir. 1984).

In Simon , a police officer, who was a paraplegic due to an injur y sustained in the line of duty, brought an action under the Rehabilitation Act becau se the police department refused to reinstate him as a commissioned officer. 735 F.2d at 1083. Simon was unable to satisfy all of the physical requi rements of a commissioned officer, partly because he lacked th e physical capability to effect a forceful arrest. Id. Simo n contended that

### We note that the Missouri Court of Appeals has recentl y 2 

### determin ed as a matter of state law that "[i]t is essential tha t th e corrections officers be able to adequately perform th e de fensive tactics in order to control inmates and suppres s disorders as well as to protect themselves and others." Stratton v. Missouri Dep't of Corrections and Human Resources , 897 S. W.2d 1, 5 (Mo. Ct. App. 1995). Because Stratton occurred after th e decision to terminate Allison was made, it may be relevant on the trial of the merits of this case, but it does not figure into our qualified immunity analysis.
10 there were positions in the police department where an officer would not likely be called upon to make a forceful arrest. Id. at 1084. The police department maintained that the requirement was r easonable and necessary to
ens ure efficient police work. Id. After remanding for a specifi c dete rmination on this issue, we held that the district court did no t clearly err in findin g that the forceful arrest requirement was necessary to the job. Id. at 1085. Allison has cited no similar cases holding to the contrary.

The clearly established law of Simonis relevant to determinin g whether the defendants acted reasonably at the t ime of Allison's discharge (the issue in this limited qualified immunity appeal), but will control th e merits of this case only to the extent that similar fact-findings emerge at trial. Nevertheless, absent any then-existing law to the c ontrary, the

2 ind ividual defendants at the time of Allison's termination were free t o rely on the principles enunciated in Simon . We conclude that th e individual defendants acted reasonably in light of the clearly established law at the time by adhering to their policy that a CO I must be capable of restraining an inmate , even while stationed in posts where inmate contact is the exception. Thus, the district court erred in concluding that the individual defendants were not entitled to qualified immunity.

### 11 III.
Accordingly, we reverse the district court's denial of qualifie d immunityto the individual defendants (Dora B. Schriro, George Lombardi, and Mike Groose), and we remand for further proceedings consistent wit h this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.