December 2011 - Parks & Recreation - 43

continuously found that employers are not
required to assign existing employees or
hire new employees to perform certain
functions or duties of a disabled employee's job which the employee cannot perform by virtue of his disability. "
As a result, the court held " as a matter of law that Plaintiff is not 'otherwise
qualified' within the meaning of the ADA
and has failed to prove a prima facie case
of discrimination with respect to Defendants' wave-pool lifeguard position. "

Interactive Process?
Keith had also argued that Oakland had
failed to engage him in an interactive process to determine an appropriate accommodation. Citing ADA regulations, the
court noted " the interactive process is
mandatory and requires a good faith effort by both parties " wherein the employer does " initiate an informal, interactive

process with the qualified individual " in
order to determine an appropriate accommodation. 29 C.F.R. § 1630.2(o)(3). On
the other hand, the court acknowledged
precedent which had held " a failure to engage in the interactive process is not an
independent violation of the ADA. " Rather, in the absence of an interactive process, the court found " Plaintiff still must
show that a reasonable accommodation
was possible in order to hold Defendant
liable for a violation of the ADA. "
In this particular instance, as described
above, the court had already determined
that Keith had failed to show that his " cochlear implant, an interpreter/signer during
only classroom instruction and staff meetings and the suggested modifications " are
reasonable accommodations. As a result,
the federal district court held Oakland's
" failure to engage in the interactive process
with Plaintiff is not a violation of the ADA. "

Conclusion
Having found that Keith was " not a qualified individual that can perform the
duties of a wave-pool lifeguard " at Oakland's facility, the federal district court
granted summary judgment to Defendant Oakland County. In so doing, the
court dismissed Keith's claim that he
was discriminated against on the basis
of disability in violation of the ADA because Oakland had denied him employment as a wave-pool lifeguard in 2007
and 2008.
JAMeS C. KOZLOwSKi, J.d., Ph.d.

is an associate professor in the School of
Recreation, Health, and Tourism at George
Mason University in Manassas, Virginia.
Email: jkozlows@gmu.edu. Webpage with
link to Law Review archive: http://mason.
gmu.edu/~jkozlows.

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