United States District Court, D. Nebraska
LINDA L. FAULKNER, an individual; Plaintiff,
DOUGLAS COUNTY, NEBRASKA, a political subdivision of the State of Nebraska; Defendant.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
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.
Motion for Reconsideration is construed as a motion to alter
or amend judgment under Fed.R.Civ.P. 59(e), and is timely.
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.
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
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.
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 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
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.
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
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).
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.
reasons stated in the Court's Memorandum and Order of
December 22, 2016, ECF No. 42, and the reasons stated herein,
IT IS ORDERED: Plaintiff Linda L. ...