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DIPOMPO v. WEST POINT MILITARY ACADEMY

August 19, 1991

MICHAEL
v.
DIPOMPO, PLAINTIFF, V. WEST POINT MILITARY ACADEMY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Mukasey, District Judge.

OPINION AND ORDER

Plaintiff suffers from dyslexia and has sought unsuccessfully to be employed as a structural firefighter at the U.S. Military Academy, West Point. His application was rejected on the ground that he cannot read at a 12th grade level, a requirement West Point has imposed for hiring structural firefighters. His remaining claims arise under § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791. He asserts that he is a handicapped individual within the meaning of the statute and applicable regulations, and that the failure to hire him constitutes disparate impact, surmountable barrier and social bias discrimination. This case was the subject of a prior opinion, reported at 708 F. Supp. 540 (S.D.N.Y. 1989), familiarity with which is assumed for current purposes.

Because it appeared that under any of plaintiff's remaining theories of discrimination, assuming without deciding that all are tenable under § 501, he would have to show that he could perform the essential functions of a structural firefighter at West Point, with or without reasonable accommodation, and because his ability or lack of it in that respect seemed to be the core dispute between the parties, see, Prewitt v. U.S. Postal Service, 662 F.2d 292, 306-09 (5th Cir. 1981) (discussing both "disparate impact" and "surmountable barrier" discrimination), that issue alone was tried in a four-day bench trial.

For the reasons set forth more fully below, and after evaluating the credibility of the witnesses and the submissions of the parties, judgment will be entered for defendant both because plaintiff failed at trial to present evidence that he is capable of meeting the reasonable requirements of a structural firefighter at West Point in spite of his handicap, and because West Point showed that the accommodations suggested by plaintiff are not reasonably possible without materially changing the job and unacceptably compromising safety.

I.

Before weighing the evidence presented at trial, it is useful to clarify what standards and burdens, particularly burdens of persuasion and of going forward with evidence, are imposed on parties to a § 501 action. "Section 501 [of the Rehabilitation Act]*fn1 imposes on federal agencies a duty to take affirmative steps to ensure that handicapped individuals have equal access to employment opportunities in the federal government." Treadwell v. Alexander, 707 F.2d 473, 475 (11th Cir. 1983); see also, Southeastern Community College v. Davis, 442 U.S. 397, 410, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979). One practical effect of that statute and the relevant regulations thereunder*fn2 is that "[a]lthough the plaintiff initially has the burden of coming forward with evidence to make at least a facial showing that his handicap can be accommodated, the federal employer has the ultimate burden of persuasion in showing an inability to accommodate." Id. at 478.

In this case it was necessary for plaintiff to present some evidence that he could perform the essential functions of the job and that his dyslexia, to the extent it was proved at trial, either needed no accommodation or could be reasonably accommodated. If he did so, it was then up to defendant to carry the burden of proving by a preponderance of credible evidence that it could not reasonably accommodate plaintiff's handicap. The relevant regulations specify that performance of essential functions must be accomplished "without endangering the health and safety of the individual or others," 29 C.F.R. § 1613.702(f) (1987), and that a reasonable accommodation must be one that does not impose an "undue hardship" on the agency. 29 C.F.R. § 1613.704(a). It is against those standards that the evidence must be measured.

II.

The firefighters employed by West Point's Division of Fire Prevention and Protection serve a facility that covers 24 square miles, with some 1000 structures occupied by about 32,000 persons during the day and 20,000 at night. In addition, approximately 2 to 3 million tourists visit the military academy every year. (Tr. 374-78) As one might expect at a training center for Army officers, the facility stores substantial amounts of ammunition of all kinds, as well as vehicle and aviation fuel. (Tr. 376-78)

West Point employs 45 people in full-time fire prevention and control, including one chief, two assistant chiefs, seven captains, 30 firefighters, four fire inspectors and a secretary, and approximately an additional 10 during the summer. The firefighters work at two locations, West Point and the Stewart Army Subpost, for most of the year, and work also at Camp Buckner during the summer.

This complement is divided into seven crews, each consisting of four firefighters and one captain. Each firefighter works three 24-hour shifts per week, with two crews assigned to Stewart and five to West Point, of which one crew alternates at Stewart as well. (Tr. 379-80)

Firefighters at West Point must read and identify words and symbols in a wide variety of emergency and non-emergency situations. In emergencies, they may be called on to read and determine the significance of numbers, words or symbols identifying the contents of buildings or vehicles. These include hazardous materials symbols identified by four-digit numbers which are listed in an extensive guidebook carried on each fire apparatus and kept also at both the West Point and Stewart fire houses, which must be consulted for appropriate procedures in case the identified material is encountered in a fire, spill or leak, or in case of exposure to the material. (Tr. 382-88) In addition, dealing with elevator emergencies could include locating the power switch for the elevator and shutting it off. (Tr. 388-89)

The regular non-emergency duties of firefighters at West Point include inspection of buildings, trains, boats and trucks for the presence of chemically dangerous, hazardous or flammable materials, and they are expected to know and read the symbols and placards identifying such materials. (Pretrial Order, p. 61 ¶ 12) In connection with those inspections, they must prepare reports. They must also inspect fire extinguishers. (Tr. 383-84, 387-88) They train daily in all phases of their work, and such training regularly includes written materials, both texts and manuals such as the hazardous materials guidebook referred to above. (Tr. 383-85, 389)

Apart from response to fires, inspection and training, each firefighter is required on a rotating basis to serve a tour on housewatch, either once every two weeks in the communications room at the West Point firehouse or once every fourth tour at the Stewart Army Subpost. (Tr. 393) The person assigned to housewatch answers the telephone, records information such as work schedules, incidents/calls and other firehouse activities in a daily log constituting the agency's official record of the event, and acts as the ...


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