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No. 95-2819

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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. *

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 Submitted: March 13, 1996

 Filed: August 30, 1996

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Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

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HANSEN, Circuit Judge.

Jo Anne Allison brought this action alleging claims of discrimination

on the basis of disability in violation of the Americans 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,

Director of the Missouri Department of Corrections; George Lombardi,

Director of Adult Institutions; and Mike Groose, Superintendent of the

Jefferson City Correctional Center) appeal the district court's denial of

their motion for summary judgment based on qualified immunity. We reverse.
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I.

Jo Anne Allison is a former employee of the Missouri Department of

Corrections, where she served the Department as a Correctional Officer I

(CO I). The state merit system defines the CO I job classification,

stating that a CO I "performs a variety of assignments involving the

supervision, control and treatment of inmates in a state adult correctional

facility." (Appellants' App. at 94.) The definition offers a

nonexhaustive list of work examples that require a CO I, among other

things, to work in all 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 physician

reported to the Department that Allison could return to work in a control

room position as of January 25, 1993. Allison's physician specifically

noted, however, that she should not work in combat or conflict situations

where she might have to restrain an inmate. 

Given Allison's medical restrictions, George Lombardi, the Director

of Adult Institutions, advised Allison that she would be terminated

effective February 2, 1993, unless she could obtain a full release from her

doctor that would allow her to perform all of the duties listed for the CO

I classification. Allison never received a full release from her doctor,

and the Department did not allow her to return to work with limitations

that would prevent her from performing all of the duties required of a CO

I, which include the ability to maintain physical control of inmates in

conflict situations. The Department of Corrections terminated Allison's

employment on February 2, 1993. 
3

In October 1993, Allison filed an application for social security

benefits, claiming that she was then totally disabled. On March 2, 1994,

the Social Security Administration denied her application, finding as

follows: "We realize you are unable to work at the present time, but you

should recover within twelve months of October 1, 1993, to return to your

past job as a correction officer." (Appellants' App. at 463.) The

Missouri State Employees Retirement System allowed Allison to receive

disability benefits without any adversarial proceeding. 

In August 1994, Allison brought this action against the Department

of Corrections, two individual department and division directors, and the

superintendent of the facility where she was employed (Schriro, Lombardi,

and Groose), alleging workplace discrimination on the basis of disability

and failure to accommodate in violation of the Americans 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 control room or the guard towers. The defendants moved for summary

judgment, asserting that (1) Allison is not "otherwise qualified" within

the meaning of the ADA because (a) she previously stated that she is

totally disabled and she should be judicially estopped from denying it now,

and (b) she cannot perform the essential job functions of a CO I; (2) she

is not entitled to compensatory or punitive damages; (3) Eleventh Amendment

immunity bars jurisdiction of the pendent state claim; and (4) the

individual defendants are entitled to qualified immunity from suit.

The district court granted summary judgment in part, dismissing the

pendent Missouri Human Rights Act count on Eleventh Amendment grounds and

concluding that Allison is not entitled to
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punitive damages. The district court denied summary judgment on the

remaining issues. Relevant to this appeal, the district court denied

summary judgment to the individual defendants on the basis of qualified

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 of

summary judgment on their claim of qualified immunity. 

II.

We initially pause to consider our jurisdiction to hear this appeal.

A district court's denial of qualified immunity is immediately appealable

as a final decision under the collateral order doctrine where "(1) the

defendant [i]s a public official asserting a defense of `qualified

immunity,' and (2) the issue appealed concern[s], not which facts the

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 contends that we lack jurisdiction over this appeal because

the district court denied summary judgment on the basis of disputed issues

of fact. See id. at 2153 (holding that a determination of whether a

triable issue of fact exists in the pretrial record is not immediately

appealable). To the contrary, the individual defendants contend that the

only issue 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 `clearly established'"). The district court denied the individual

defendants' claims of qualified immunity, stating,
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"[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 alleged

actions violated plaintiff's rights." (Appellants' Addend. at 12.) 

The crux of the individual defendants' argument is that their actions

were reasonable given their knowledge at the time of Allison's termination.

This issue is immediately appealable upon the denial of a qualified

immunity claim. The Supreme Court has explained that "Johnson permits [a

public official] to claim on appeal that all of the conduct which the

District Court deemed sufficiently supported for purposes of summary

judgment met the Harlow [v. Fitzgerald] standard of `objective legal

reasonableness.'" Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996). See

also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (stating the standard

of objectively reasonable conduct). Accordingly, we conclude that we have

jurisdiction to consider the legal question of whether, in view of the

facts that the district court deemed sufficiently supported for summary

judgment purposes, the individual defendants' conduct was objectively

reasonable given their knowledge and the clearly established law. 

To the extent the individual defendants assert issues concerning what

facts Allison may or may not be able to prove at trial, we lack

jurisdiction to consider them in this qualified immunity appeal. For

instance, we do not have jurisdiction to consider the individual

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 individual defendants acted

reasonably given their knowledge at the time of her discharge. We likewise

lack jurisdiction to review the district court's determination that

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 under the Rehabilitation 1

Act, public officials are entitled to qualified immunity from

liability unless they violated an employee's clearly established

rights under the Act and reasonably should have known they were

doing so. Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir. 1994). We

have not had occasion to specifically determine whether public

officials 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 this case. In the same breath, however, she argued that

individual liability is implied because the doctrine of respondeat

superior applies under the Acts. 

At oral argument, Allison modified her argument, claiming for

the first time that the ADA does not provide a basis for individual

liability so there is no need for or purpose to be served by

applying qualified immunity in this context. See Mason v.

Stallings, 82 F.3d 1007, 1009-1010 (11th Cir. 1996) (holding

qualified immunity was not designed for cases such as those arising

under the ADA because the ADA does not provide for individual

liability) (decided after oral arguments in Allison's case and not

submitted to this court by the parties). The parties did not

thoroughly brief or argue this issue, and there is no indication

that Allison raised it before the district court. The thrust of

the arguments in this appeal concern whether the individual

defendants are entitled to qualified 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 provides for

individual liability. It is sufficient for this appeal to note

that Allison has clearly sued these defendants in their individual,

as well as official, capacities (Appellants' App. at 12); and if

individual liability is possible, then qualified immunity should 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 an essential 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 consider the merits of this limited appeal, which is whether

the individual defendants are entitled to qualified immunity. Government 1

officials are entitled to qualified immunity when "their conduct does not

violate clearly established statutory or constitutional rights of which a

reasonable person would have
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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 the

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 deemed

sufficiently supported for purposes of summary judgment, and where the

district court did not identify the particular conduct that it deemed

adequately supported, we view the facts in the light 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

Rehabilitation Act (the Acts). Because the same basic standards and

definitions are used under both Acts, cases interpreting either are

applicable and interchangeable for purposes of our discussion. See Wooten

v. Farmland 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

within the definition of each Act violates the Acts when that employer

discriminates 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 their

implementing regulations provide specifically that discrimination includes

an employer's act of not making "reasonable accommodations" for the known

limitations 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). 

Allison claims she was dismissed from her job as a CO I "when she

advised her supervisors that she had physical limitations resulting from

a work-related spinal injury, had permanent medical restrictions from

involvement in inmate combat or conflict situations, and would need an

accommodation to be able to perform the essential functions of her

position." (Appellee's Br. at 6.) Allison requested the accommodation

that she be permanently placed
8

in certain CO I posts, such as the guard tower or control center, where

physical control of inmates is not routinely required. The Department

argued that the ability to restrain inmates is an essential function of all

CO I positions because the Department needs the flexibility to transfer CO

I's among different posts and because there always exists the potential for

an emergency situation where the Department would need all available CO I's

to aid in restraining inmates. The district court concluded that there was

a genuine issue of material fact in dispute concerning whether inmate

control is an essential function of all CO I posts and whether the

Department could reasonably accommodate Allison's disability.

In its qualified immunity determination, the district court

specifically credited the following undisputed evidence: The individual

defendants, high ranking employees of the Department of Corrections, were

aware of the ADA and the Rehabilitation Act and made definite policy

decisions regarding them. Director Lombardi testified that for several

years the Department has had a policy to dismiss any CO I who is not

capable of performing 100 percent of the required duties of that job

classification. 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 physical

limitation. Further, in 1992, the Missouri Human Rights Commission (MHRC)

twice ordered the Department of Corrections to stop discriminating against

individuals with disabilities in the employment context. 

Accepting these factual premises, we conclude that the individual

defendants acted reasonably in light of the clearly established law at the

time of Allison's termination in 1993. The 1994 jury decision has no

bearing on the qualified immunity determination because it occurred after

Allison's employment was
9

terminated. The two 1992 MHRC orders to stop discriminating against

individuals with disabilities 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 that

individual's ability to perform 100 percent of the 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 might

require her to control or combat inmates. Thus, the prior MHRC orders

would not give the individual defendants reason to believe that they must

accommodate an individual who is unable to restrain inmates. 

Furthermore, and most importantly, the clearly established law in

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 the Rehabilitation Act does

not require an employer to disregard the disabilities of handicapped

individuals. See Southeastern Community College v. Davis, 442 U.S. 397,

405 (1979). The Court explained that individuals must be qualified for the

job "in spite of" a disability, not "except for" the limitations of the

disability. Id. at 406. Applying this Supreme Court precedent, we

expressly stated in 1984 that an individual with a disability "may be

required to meet legitimate physical qualifications 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 injury

sustained in the line of duty, brought an action under the Rehabilitation

Act because 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 requirements of a commissioned officer, partly because he

lacked the physical capability to effect a forceful arrest. Id. Simon

contended that
 We note that the Missouri Court of Appeals has recently

2

determined as a matter of state law that "[i]t is essential that

the corrections officers be able to adequately perform the

defensive tactics in order to control inmates and suppress

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 the

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 reasonable and necessary to

ensure efficient police work. Id. After remanding for a specific

determination on this issue, we held that the district court did not

clearly err in finding 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 Simon is relevant to determining

whether the defendants acted reasonably at the time of Allison's discharge

(the issue in this limited qualified immunity appeal), but will control the

merits of this case only to the extent that similar fact-findings emerge

at trial. Nevertheless, absent any then-existing law to the contrary, the 2

individual defendants at the time of Allison's termination were free to

rely on the principles enunciated in Simon. We conclude that the

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. 
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III.

Accordingly, we reverse the district court's denial of qualified

immunity to the individual defendants (Dora B. Schriro, George Lombardi,

and Mike Groose), and we remand for further proceedings consistent with

this opinion. 

A true copy.

Attest:

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