UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CASEY Q. BURKE,

Plaintiff-Appellant,

v.

COMMONWEALTH OF VIRGINIA;

No. 96-1709

COMMONWEALTH OF VIRGINIA

DEPARTMENT OF CORRECTIONS; PAUL

BROUGHTON; LONNIE M. SAUNDERS,

Warden; THOMAS R. PARK,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CA-95-934)

Argued: April 10, 1997

Decided: June 6, 1997

Before HALL and NIEMEYER, Circuit Judges, and

DUFFY, United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Terry William Raney, Richmond, Virginia, for Appellant.

Guy Winston Horsley, Jr., Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for

Appellees. ON BRIEF: James S. Gilmore, III, Attorney General of

Virginia, Catherine C. Hammond, Deputy Attorney General, Neil

A.G. McPhie, Senior Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL, Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Casey Q. Burke sued the Commonwealth of Virginia and its

employees under the Americans with Disabilities Act of 1990

("ADA"), 42 U.S.C. § 12101 et seq ., alleging that the defendants discriminated against him in testing and training him to be a correctional

officer. Burke claims that the defendants failed to make reasonable

accommodation for his "attention deficit hyperactivity disorder" and

"developmental expressive and receptive language disorder." He also

claims that defendants retaliated against him for filing a discrimination claim with the EEOC. The district court entered summary judgment in favor of the defendants, and Burke appealed. We affirm.

In January 1993, after Virginia's Augusta Correctional Center

hired Burke as a correctional officer, it sent him to the Department of

Corrections Training Academy where he was required to earn passing

grades in order to be certified as a correctional officer. The training

coordinator at the academy informed the Augusta Correctional Center's warden, however, that Burke failed to obtain the minimum passing score on his mid-term examination. Although Burke was given a

second and a third chance to pass the examination in one-on-one

administrations, he failed both times. After having failed the test a

total of three times, Burke informed the training officers that he had

mild dyslexia.

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The Training Academy referred Burke to the Center for Learning

Potential "to determine if [he] has any learning disabilities which

should be accommodated during the testing situation," and Burke was

provisionally diagnosed with "attention deficit hyperactivity disorder"

and "developmental expressive and receptive language disorder." In

his report, the evaluating psychologist repeatedly noted that Burke

lacked the ability to process or remember aurally received information. The evaluator also noted that Burke's reading skills were "significantly weak," and concluded, "[a]lthough[Burke] is expressing an

interest in being a correctional officer, the results from his interest

inventory, as well as his cognitive skills and abilities are not consistent with this occupational area."

The Department of Corrections thereafter informed Burke that it

had received Burke's evaluations and that it did not believe that the

Department of Corrections could accommodate him in any way that

would allow him to become a certified correctional officer. Specifically, the Department of Corrections stated,

[Y]our inability to read, respond, remember, and follow

instructions are verified by the evaluation. These are essential requirements of a Corrections Officer in the everyday

supervision of inmates and the reading and following of post

orders.

Nonetheless, the Department of Corrections offered Burke the position of motor vehicle operator at another facility at the same salary

paid to correctional officers. Burke rejected that offer because the

travel distance to work would have been too great. The Department

of Corrections then offered Burke the position of store clerk at the

Augusta Correctional Center, which he accepted. After almost a year

at that position, however, Burke quit.

The ADA provides in relevant part that "no qualified individual

with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or

activities or a public entity, or be subjected to discrimination by any

such entity." 42 U.S.C. § 12132 (emphasis added). The term "qualified individual with a disability" is defined by the Act to mean "an

individual with a disability who, with or without reasonable accom-

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modation, can perform the essential functions of the employment

position that such individual holds or desires." 42 U.S.C. § 12111(8).

The official job description for the position of correctional officer

requires that the employee be able to "communicate both orally and

in writing and read and interpret written material." It also requires that

upon completion of training, the employee demonstrate an "ability to

apply and interpret laws, rules and regulations, conduct thorough

searches and investigations; recognize problems for report to higher

supervisory level; provide leadership and work direction to inmates;

and to use good judgment in the use of lethal force." According to the

psychological evaluation of Burke, his "auditory skills are inadequate

for learning"; he "has difficulty retaining information learned orally";

and he was limited to circumstances where "verbal instruction" was

not necessary. Thus, according to the job description, which is not

disputed by any other evidence in this case, Burke is not qualified

regardless of any accommodation that can be hypothesized. Indeed,

the psychologist at the Center for Learning Potential found that

Burke's "cognitive skills and abilities are not consistent with this

occupational area." And that finding is not controverted. Accordingly,

Burke has failed to state a claim under the ADA.

Notwithstanding Burke's inability to demonstrate that he is protected by the ADA for a correctional officer's position, Virginia provided Burke with other suitable positions, the second of which he

accepted. He makes no allegation that his departure from this clerk's

position was in any way prompted by acts of discrimination.

In his complaint Burke also alleges that Virginia retaliated against

him because he filed a discrimination claim with the EEOC. It is

undisputed, however, that Virginia rejected him from the position of

correctional officer before he engaged in the protective activity of

asserting any rights under the ADA. The only conceivably retaliatory

action which Burke alleged was failure to hire him for the position of

boiler operator. All the evidence in this regard, however, indicates

that he was not hired because he was unqualified.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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