Faulkner v. Douglas County, Nebraska

Filing 48

MEMORANDUM AND ORDER - Plaintiff Linda L. Faulkner's Motion for Reconsideration, ECF No. 44 , is denied. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINDA L. FAULKNER, an individual;
Plaintiff,

8:15CV303

vs.
MEMORANDUM AND ORDER
DOUGLAS COUNTY, NEBRASKA, a
political subdivision of the State of
Nebraska;
Defendant.

This matter is before the Court on the Plaintiff’s Motion for Reconsideration, ECF
No. 44.

Plaintiff Linda L. Faulkner (“Faulkner”) asks the Court to reconsider its

Memorandum and Order, ECF No. 42, in which the Court granted the Defendant’s
Motion for Summary Judgment, ECF No. 26.
STANDARD OF REVIEW
Faulkner’s Motion for Reconsideration is construed as a motion to alter or amend
judgment under Fed. R. Civ. P. 59(e), and is timely.
“Rule 59(e) motions serve the limited function of correcting ‘manifest errors of law
or fact or to present newly discovered evidence.’” United States v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Innovative Home Health Care v.
P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)).
DISCUSSION
Faulkner contends that the Court committed manifest errors of fact by finding that
a 350-pound team lifting requirement was an essential function of Faulkner’s job, and by
failing to find that the Defendant neglected a requisite interactive process to determine

whether reasonable accommodations could enable Faulkner to perform the essential
functions of her job.
With respect to the 350-pound team lifting requirement, the Defendant cited the
official job description for the Correctional Officer II position, which included the
statement, “[i]ncumbents must meet the following specific job related physical
requirements: . . . Lifting . . . occasional up to 350 lbs., as part of a team lift.”
Defendant’s Brief, ECF No. 27, Page ID 108 (quoting Douglas County Civil Service
Commission Position Description for Correctional Officer II (“Position Description”), ECF
No. 28-21, Page ID 312).

Faulkner acknowledged that the Defendant accurately

identified the position description for a Correctional Officer II, although she disputed that
the listed job duties were actually performed regularly by all persons employed by the
Defendant in Correctional Officer II positions. Plaintiff’s Brief, ECF No. 36, Page ID
1400.
Faulkner’s argument regarding the 350-pound team lifting requirement fails for
two principal reasons. First, there were other physical requirements of the Correctional
Officer II position that Faulkner could not meet, including specific measures of individual
lifting, pulling, and pushing abilities. See Position Description, ECF No. 28-21, Page ID
312. Second, even if some people employed by the Defendant in Correctional Officer II
positions did not perform functions requiring the specified physical standards on a
frequent basis, such employees were required to be able to perform such duties when
the need arose. Among the primary duties and responsibilities of employees in the
Correctional Officer II position was the duty to “[r]estrain or restrict the actions of
combative or disruptive inmates . . . .” Position Description, ECF No. 28-21, Page ID
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310. Among the basic skills and abilities required of employees in the Correctional
Officer II position was the “[a]bility to physically restrain combative inmates.” Id., Page
ID 311; see also Deposition of Mark Foxall at 26:15 to 27:8, ECF 28-1, Page ID 185.
With respect to the interactive process, the Defendant provided Faulkner with a
letter on August 27, 2013, noting that Defendant was informed by Faulkner’s medical
providers that Faulkner would not be able to perform essential functions of a
Correctional Officer II position. The letter also stated, “[i]f you feel that there is some
type of accommodation that will allow you to perform the essential functions of the
position, or some other position within the county, please advise and an Employee
Review Committee meeting will be scheduled to initiate an interactive dialog on the
matter.” Defendant’s Brief ¶ 32, ECF No. 27, Page ID 115 (quoting letter of Mark Foxall,
ECF No. 28-6, Page ID 268–69). On October 7, 2013, such a meeting was convened,
and Faulkner suggested that she be assigned to the Douglas County Department of
Corrections central control or lobby, or to a position within the Douglas County
Department of Motor Vehicles. Defendant’s representative noted that Faulkner could
apply for any open positions within the Douglas County Department of Motor Vehicles,
and Faulkner made no such applications. Faulkner does not deny that this interactive
process occurred, as described in Defendant’s Brief ¶ 34, ECF No. 27, Page ID 116, but
she disputes the good-faith of Defendant’s representatives who participated in the
process. Plaintiff’s Brief ¶ 34, ECF No. 36, Page ID 1410.
Faulkner’s argument regarding the interactive process also fails for two principal
reasons. First, the undisputed evidence shows that the Defendant did engage in an
interactive process to determine whether any accommodations would enable Faulkner
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to perform the essential functions of the Correctional Officer II position. Second, the
interactive process is unnecessary when a plaintiff is not a qualified employee who can
perform the essential functions of the position with reasonable accommodation, nor is
the process required when no reasonable accommodation is available. See Scruggs v.
Pulaski County, Ark., 817 F.3d 1087, 1094 (8th Cir. 2016) (quoting Battle v. United
Parcel Serv., Inc., 438 F.3d 856, 864 (8th Cir. 2006)) (“[U]nder the ADA, if no
reasonable accommodation is available, an employer is not liable for failing to engage in
a good-faith interactive process.”); Dropinski v. Douglas County, 298 F.3d 704, 709–10
(8th Cir. 2002) (holding that the interactive process is superfluous where worker cannot
perform essential job duties, and any accommodation would result in job restructuring).
Faulkner’s suggested accommodations were not ones that would enable her to
perform the essential functions of the Correctional Officer II position, but ones she
perceived would relieve her of those functions. Even though the Court accepts as true
Faulkner’s assertion that she was assigned to a post without inmate contact for a
prolonged period of time at some point during her career with the Defendant, the Court
concludes that the Defendant was not obliged to contravene a current Collective
Bargaining Agreement to provide Faulkner with a permanent assignment where she
would be shielded from inmate contact.
For the reasons stated in the Court’s Memorandum and Order of December 22,
2016, ECF No. 42, and the reasons stated herein,

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IT IS ORDERED: Plaintiff Linda L. Faulkner’s Motion for Reconsideration, ECF
No. 44, is denied.
Dated this 23rd day of January, 2017.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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