title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." 29 U.S.C.A. § 794 (West Supp. 1996). Section 706(8) defines "individual with a disability" as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C.A. § 706(8)(B) (West Supp. 1996).
Plaintiff clearly does not satisfy the criteria under this provision because, by her own admission, she is unable to perform the active duties of a Village police officer, and she therefore is not "otherwise qualified" for active duty. The phrase "otherwise qualified" is not defined in the FRA. It has been interpreted generally by the Supreme Court to refer to "'one who is able to meet all of a program's requirements in spite of his handicap.'" School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 287 n.17, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987) (quoting Southeastern Community College v. Davis, 442 U.S. 397, 406, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979)).
Consistent with this interpretation, the regulations interpreting the FRA generally use the term "qualified handicapped person," rather than "otherwise qualified handicapped person," on the reasoning that "the omission of the word 'otherwise' is necessary in order to comport with the intent of the statute because, read literally, 'otherwise' qualified handicapped persons include persons who are qualified except for their handicap, rather than in spite of their handicap." 45 C.F.R. Part 84, App. A., Subpt. A(5) (1995); see also 29 C.F.R. § 1613.702(f). The regulations define the term "qualified handicapped person," in pertinent part, as "a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question." 45 C.F.R. § 84.3(k).
There is no dispute that the duties of a police officer in the Village requires at times walking long distances or running, see supra n.1, and plaintiff admits that her condition precludes her from doing either. Plaintiff offers no insight into how a reasonable accommodation on the part of defendants might enable plaintiff to perform these functions. Instead, plaintiff seeks the creation of a new "light duty" position that does not require any walking or running, and resists summary judgment on the ground that whether such an accommodation is reasonable is an issue of fact. What plaintiff seeks, however, goes beyond "reasonable assistance or job modification by the employer." Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991). "Reasonable accommodation" may include such adjustments as modification of physical facilities, work schedules, or equipment, or some job restructuring, see 45 C.F.R. § 84.12(b), but "reasonable accommodation" does not mean elimination of any of the job's essential functions. Gilbert, 949 F.2d at 642. See also id. at 644 (suggestion that the lifting and handling requirements of a Manual Mail Distribution Clerk could be waived for plaintiff was not a suggestion for reasonable accommodation because these tasks were essential functions of the job); Hall v. United States Postal Service, 857 F.2d 1073, 1078 (6th Cir. 1988) ("An accommodation that eliminates an essential function of the job is not reasonable."). In the instant case, plaintiff does not dispute that a Village police officer on active duty must at times walk long distances or run in carrying out various essential functions. Plaintiff does not suggest that any reasonable accommodation would enable plaintiff to carry out these essential functions. Plaintiff's lone assertion that a light duty position should be afforded as reasonable accommodation is unavailing in light of the undisputed fact that walking long distances and running are "essential functions of the job." Gilbert, 949 F.2d at 644; Hall, 857 F.2d at 1078. See also Cook v. United States Dept. of Labor, 688 F.2d 669, 670 (9th Cir. 1982) (per curiam) (Plaintiff was not barred because of his physical handicap in violation of FRA where both plaintiff and his doctor informed plaintiff's employer that plaintiff suffered from angina and plaintiff conceded that if he had angina, he would have been unable to adequately perform his job as a jailer.), cert. denied, 464 U.S. 832, 78 L. Ed. 2d 113, 104 S. Ct. 112 (1983).
Plaintiff has failed to adduce any evidence supporting an allegation that she is a "qualified individual with a disability" who can perform the essential functions of the job with reasonable accommodation. In fact, it is based on plaintiff's representations and her treating physician's subsequent confirmation that defendants were compelled to conclude that she could not fulfill her active duties as a police officer. Because plaintiff has come forward with no evidence upon which a fact finder could rely, her opposition to summary judgment is unavailing.
III. State Law Claims
Because we grant defendants summary judgment dismissing all federal claims, we decline to exercise jurisdiction over the pendent state law claims. See 28 U.S.C. § 1367(c)(3); Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir. 1992).
For the foregoing reasons, plaintiff's motion for partial summary judgment is denied; defendants' motion for summary judgment is (1) granted with prejudice with respect to the claims brought under section 1983 (first and second causes of action) and the FRA (seventh cause of action), and (2) granted without prejudice with respect to the claims brought under New York state law (third, fourth, fifth, and sixth causes of action).
May 3, 1996
White Plains, New York.
William C. Conner
Senior U.S. District Judge