Martin v. State of Kansas

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 19 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

STEVEN A. MARTIN,

Plaintiff-Appellant and Cross-
Appellee,
v.

STATE OF KANSAS,

Defendant-Appellee and Cross-
Appellant,

and
Nos. 98-3102 & 98-3118
UNITED STATES OF AMERICA,

Intervenor,
_________________________

COLORADO CROSS DISABILITY
COALITION and THE LEGAL
CENTER FOR PEOPLE WITH
DISABILITIES AND OLDER
PEOPLE,

Amici Curiae.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 97-2025-JWL)

Kirk W. Lowry, Palmer, Lowry & Leatherman, Topeka, Kansas, for Plaintiff-
Appellant and Cross-Appellee.
Edward F. Britton, Jr. and Lisa A. Mendoza, Kansas Department of Corrections,
Topeka, Kansas, for Defendant-Appellee and Cross-Appellant.

Seth M. Galanter (Jessica Dunsay Silver with him on the brief), Attorneys,
Department of Justice, Washington, D.C., for Intervenor.

William P. Bethke and Kristin A. Kutz, Kutz & Bethke, Lakewood, Colorado, and
Kevin W. Williams, General Counsel, Colorado Cross Disability Coalition,
Denver, Colorado, for Amicus Curiae Colorado Cross Disability Coalition.

Chester R. Chapman and Michael W. Breeskin, Denver, Colorado, for Amicus
Curiae The Legal Center for People with Disabilities and Older People.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
LUCERO, Circuit Judge.

EBEL, Circuit Judge.

Plaintiff-appellant Steven A. Martin (“Martin”), a former state corrections

officer, appeals the district court’s orders granting summary judgment in favor of

the defendant-appellee State of Kansas (“State”) on Martin’s claims of disability

discrimination and impermissible medical inquiry, brought pursuant to the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101-12213. The State

cross-appeals the district court’s denial of the state’s motion to dismiss on the

basis of Eleventh Amendment immunity. Our jurisdiction arises under 28 U.S.C.

§ 1291. For the reasons given below, we affirm.

FACTS

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 Plaintiff-appellant Steve Martin was hired by the Kansas Department of

Corrections (“KDOC”) and worked for the Hutchinson Correctional Facility from

1978 to 1981. Martin was rehired by KDOC in 1987 and worked at the Lansing

Correctional Facility (“LCF”) until he was terminated on August 21, 1995. At

the time he was discharged, he had attained the rank of Corrections Officer I

(“COI”).

LCF is a maximum security correctional facility for adult male offenders.

Law enforcement personnel 1 work at LCF under the threat of assault, riots,

escape, and other such disturbances that can result in injury or even death. A

written job description for the COI position provides that a COI is responsible

for, inter alia, supervising and maintaining discipline and control of inmates

throughout the prison, and responding to emergency situations, including

physically restraining or subduing inmates when necessary. The description notes

that a COI may be subjected to extremes of heat and cold and poor ventilation,

physical confrontation with inmates, and that because of the physical structure of

the facility, the COI is required to negotiate stairs and swinging doors. In

addition to a high school diploma, basic corrections officer training, a driver’s

license, and certification as a correctional officer, the position requires the

1
A corrections officer employed by the KDOC is a law enforcement officer
as defined in Kan. Stat. Ann. §§ 22-2202(13) and 75-5247a.

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“ability to deal effectively with individuals under restraint,” and the “ability to

stand for long periods, respond quickly to emergencies, and use force to subdue

violent inmates.” KDOC also has an established post rotation policy intended to

“provide a balance of qualified, experienced staff throughout the facilities at all

times.” Post rotation occurs, at minimum, on an annual basis. LCF policy states

that “[s]ecurity staff shall be rotated to different security posts assignments on an

annual basis in order to assist security staff in acquiring skills and experience

required for promotion through the ranks, to assure equality and fairness of

assignments and to prevent or counteract burnout in stressful or monotonous

posts.” Under KDOC policy, the warden is responsible for determining shift/post

assignments “with the needs and goals of the facility given primary importance.”

In determining shift/post assignments, the warden shall consider an employee’s

experience, qualifications, performance, length of service, and post/shift

preferences. 2 Employees’ post and shift preferences “shall be considered as

openings/vacancies occur.” During his tenure as a corrections officer at LCF,

Martin was assigned to a variety of posts; for the three years prior to his

termination, Martin worked tower duty in one of 14 towers at the facility.

2
Employees who have permanent civil service status may submit a post/shift
preference sheet.

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 As part of its policy on security post rotation and shift assignments, LCF

General Order 3,108 states that “[e]ach employee of LCF is requested to complete

and submit to the Personnel Department, biannually, a Disclosure of Disability

Form.” The Order further provides that “[i]nformation submitted concerning

disabilities or handicaps shall be considered in security post assignments and

reasonable accommodations shall be made as necessary. Officers requesting

accommodation of a disability or handicap shall submit a statement from the

attending physician which specifies the officer’s capabilities and limitations prior

to each post rotation date . . . .”

The Disclosure of Disability Form 3 asks the employee to “place an ‘X’ after

any disability below which presents a substantial barrier to your employment

opportunities.” The form then lists six categories of possible disability, 4 each

accompanied by a brief description.

Martin did not fill out the Disclosure of Disability Form. Instead, on

February 16, 1995, Martin submitted to the LCF Personnel Officer a letter from

Martin’s personal physician, Dr. Peter Cristiano, disclosing that Martin

The Disclosure of Disability Form in the record before us instructs the
3

employee to read and understand the information on the reverse side of the form,
but the record before us contains only the front side of the form.
4
The categories listed are: (1) visual; (2) hearing; (3) speech; (4) physical;
(5) learning; and (6) other.

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 suffers from degenerative joint arthritis of the right knee, with
decreased range of motion and pain. He has much difficulty running
up and down steps frequently, [is] unable to tolerate any sudden cold
temperature (this causes more pain), [is] unable to stand for long
periods of time, and is unable to run to alarms. This is a permanent,
chronic condition.

In response, on February 20, 1995, Warden David McKune wrote to Martin

that there were no corrections officer positions at LCF that could accommodate

Martin’s restrictions on a permanent basis. The warden attached a COI position

description and asked that Martin take it to a health care provider to obtain an

opinion as to which of the COI duties Martin could perform. The warden also

requested that the health care provider state when Martin would be “capable of

performing the full range of duties of a Corrections Officer, including the ability

to physically subdue and control violent inmates, maintain required firearms and

other qualifications, and use lethal force if necessary.”

On April 21, 1995, Dr. Cristiano wrote to the warden that he had reviewed

the position description and that, in his medical opinion, believed that Martin

could subdue or control violent inmates only with assistance; could use required

firearms or chemical weapons; could not stand over one hour at a time; could not

continuously run up and down stairs; and could not run. Dr. Cristiano did not

indicate when Martin would be capable of performing the full range of duties of a

corrections officer; rather, he stated that he would re-evaluate Martin’s knee

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condition in one year. In the meantime, Dr. Cristiano stated that he saw “no

problem with tower assignments within the limits as previously described.”

On May 3, 1995, Warden McKune wrote to Martin proposing to separate

him without prejudice from his position as COI because he was unable to perform

the full range of duties of a corrections officer. McKune acknowledged that Dr.

Cristiano saw no problem with tower duty, but stated that the doctor’s listed

limitations affected Martin’s “ability to be assigned in contact positions,” and that

there were “no corrections officer positions at the Lansing Correctional Facility

which can accommodate [Martin’s] restrictions on a permanent basis.” On May

15, 1995, Warden McKune granted Martin a several-month extension in which to

provide evidence that he was capable of performing the full range of duties of a

corrections officer. McKune advised Martin that if he could not provide a

medical release indicating that he could “perform the full range of duties of a

corrections officer, including the ability to physically subdue and control violent

inmates, maintain required firearms and other qualifications, and use lethal force

if necessary,” McKune would have no alternative but to separate Martin from his

position.

On May 24, 1995, Martin filed a charge of discrimination with the EEOC,

alleging that he suffered a “permanent, chronic arthritic condition” which

prevented him from “running, climbing stairs continuously, and standing for long

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periods of time.” Martin stated that his doctor had notified LCF that he could

perform the duties of his current tower assignment; Martin noted that he “should

be able to remain in a tower indefinately [sic] if needed,” given his seniority.

It is undisputed that Martin made no formal request with LCF for

accommodation, and that Martin failed to provide the requested medical release.

As a result, on August 21, 1995, Warden McKune notified Martin that he was

being “separated without prejudice” from his position as COI. When Martin

appealed his discharge, the Kansas Civil Service Board affirmed the warden’s

action.

Martin filed suit against the State alleging ADA violations on the basis of

both an actual and a perceived disability. He also charged that the State’s policy

of requesting employees to disclose disabilities is an impermissible inquiry under

the ADA, and that the State’s policy of accommodating only temporary

disabilities also violates the ADA.

The State moved to dismiss the suit on Eleventh Amendment immunity

grounds. The district court denied the State’s motion, ruling that the ADA

represented a constitutional exercise of Congress’s power under Section 5 of the

Fourteenth Amendment, and that the ADA therefore was a proper abrogation of

Eleventh Amendment immunity.

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 The State then moved for summary judgment, contending that Martin was

not disabled within the meaning of the ADA; that Martin was not a “qualified

individual”; that his “separation without prejudice” was not an adverse

employment action; and that the State’s policy of requesting employees to

disclose disabilities was job-related and consistent with business necessity.

On February 3, 1998, the district court granted the State’s motion for

summary judgment on Martin’s ADA claims of disability discrimination and

impermissible medical inquiry. See Martin v. Kansas, 996 F. Supp. 1282 (D.

Kan. 1998). In a separate order on March 4, 1998, the district court awarded

summary judgment to the state on Martin’s claim that the State’s alleged policy of

refusing to accommodate permanent disabilities violated the ADA, and dismissed

Martin’s case in its entirety. See Martin v. Kansas, 996 F. Supp. 1297 (D. Kan.

1998). Martin now appeals the district court’s summary judgment ruling; the

State appeals the court’s ruling on its motion to dismiss on Eleventh Amendment

immunity grounds.

DISCUSSION

I. Eleventh Amendment

The State argues that Martin’s claims under the ADA should be dismissed

because Congress did not enact the ADA’s accommodation provisions pursuant to

a valid exercise of power. Specifically, the State contends that the ADA goes

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beyond other federal anti-discrimination statutes in that it not only prohibits

discrimination but also imposes affirmative duties on the State and its agencies to

make reasonable accommodations to the known disabilities of employees. The

State submits that Congress exceeded its Section 5 enforcement powers under the

Fourteenth Amendment in enacting the ADA, and thus improperly abrogated the

State’s Eleventh Amendment immunity with respect to suits under the ADA.

Because the State’s assertion of Eleventh Amendment immunity challenges

the subject matter jurisdiction of the district court, the issue must be resolved

before a court may address the merits of Martin’s underlying ADA claim. See

Steel Co. v. Citizens for a Better Env’t, 118 S. Ct. 1003, 1012-16 (1998)

(rejecting doctrine of hypothetical jurisdiction and instructing that challenges to

Article III jurisdiction must be resolved before court may address merits of

underlying claims).

Upon de novo review of the State’s claim, see ANR Pipeline Co. v.

LaFaver, 150 F.3d 1178, 1186 (10th Cir. 1998), we affirm the district court’s

denial of the State’s motion to dismiss, and hold that Congress’s statutory

abrogation of Eleventh Amendment immunity in the ADA was a valid exercise of

its Section 5 enforcement powers.

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against

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 one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.

U.S. Const. amend. XI.

A state’s Eleventh Amendment immunity from suit is not absolute; either a

state may waive its sovereign immunity or Congress may abrogate the states’

sovereign immunity in the exercise of its Section 5 power to enforce the

Fourteenth Amendment. See College Savings Bank v. Florida Prepaid

Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2223 (1999). 5 As the State of

Kansas did not waive its sovereign immunity by consenting to suit, its motion

therefore depends on whether Congress properly abrogated the states’ immunity

through the valid exercise of its Section 5 powers.

The Fourteenth Amendment provides in part that “[n]o State shall make or

enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend. XIV, § 1. Section 5 of the

In Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), the Supreme
5

Court made clear that Congress may not abrogate state sovereign immunity
pursuant to its Article I powers. See Florida Prepaid Postsecondary Educ.
Expense Bd. v. College Savings Bank,119 S. Ct. 2199, 2205 (1999) (citing
Seminole Tribe, 517 U.S. at 72-73).

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Fourteenth Amendment empowers Congress to enact “appropriate legislation” to

“enforce” the provisions of the Fourteenth Amendment. Id. § 5.

In Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), the Supreme

Court established a two-part test to determine whether Congress properly

abrogated states’ Eleventh Amendment immunity through the exercise of its

Section 5 enforcement power: first, a court must determine whether Congress

“has unequivocally expressed its intent to abrogate the immunity”; and second, a

court must determine whether Congress acted “pursuant to a valid exercise of

power.” Seminole Tribe, 517 U.S. at 55 (citations, quotations, and brackets

omitted).

The parties agree that Congress expressed its unequivocal intent to abrogate

states’ immunity with respect to suits under the ADA. See 42 U.S.C. § 12202 (“A

State shall not be immune under the eleventh amendment to the Constitution of

the United States from an action in Federal or State court of competent

jurisdiction for a violation of this chapter.”). Thus, we need only determine

whether Congress, in enacting the ADA, properly abrogated states’ immunity

pursuant to a valid exercise of its Section 5 enforcement powers.

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court

discussed the limitation of congressional enforcement power under the Fourteenth

Amendment, emphasizing that this power is “remedial” in nature. See id. at 519

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(“Congress does not enforce a constitutional right by changing what the right is.

It has been given the power ‘to enforce,’ not the power to determine what

constitutes a constitutional violation.”). The Court went on to hold that there

must be “a congruence and proportionality between the injury to be prevented or

remedied and the means adapted to that end.” Id. at 520. Accordingly, “for

Congress to invoke § 5, it must identify conduct transgressing the Fourteenth

Amendment’s substantive provisions, and must tailor its legislative scheme to

remedying or preventing such conduct.” Florida Prepaid Postsecondary Educ.

Expense Bd. v. College Savings Bank, 119 S. Ct. 2199, 2207 (1999) (discussing

City of Boerne).

In City of Boerne, the Religious Freedom and Restoration Act (“RFRA”)

failed to meet this test because there was little record support that widespread

religious bigotry was taking place, see City of Boerne, 521 U.S. at 531, and

because RFRA’s provisions were “so out of proportion to a supposed remedial or

preventive object that it cannot be understood as responsive to, or designed to

prevent, unconstitutional behavior.” Id. at 532. Furthermore, RFRA attempted to

expand the substantive meaning of the Fourteenth Amendment by imposing (in

direct contravention of Employment Div., Dep’t of Human Resources of Oregon

v. Smith, 494 U.S. 872 (1990)) a strict scrutiny standard of review for laws that

burdened religious practices. The Court concluded that Congress acted in excess

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of its enforcement authority in enacting RFRA, and struck down the statute. See

id. at 536.

Several circuit courts have addressed whether Congress’s enactment of the

ADA was similarly in excess of its enforcement authority. We agree with these

courts that the ADA does not run afoul of the “congruent and proportional”

requirement of City of Boerne. See, e.g., Muller v. Costello, Nos. 98-7491, 98-

7729, 1999 WL 599285 (2d Cir. Aug. 11, 1999); Amos v. Maryland Dep’t of

Public Safety and Correctional Servs., 178 F.3d 212, 218 (4th Cir. June 24, 1999);

Kimel v. Florida Bd. of Regents, 139 F.3d 1426, 1433 (11th Cir. 1998);

Coolbaugh v. Louisiana, 136 F.3d 430, 438 (5th Cir.), cert. denied, 119 S. Ct. 58

(1998); Clark v. California, 123 F.3d 1267, 1270 (9th Cir. 1997), cert. denied sub

nom. Wilson v. Armstrong, 118 S. Ct. 2340 (1998); see also Crawford v. Indiana

Dep’t of Corrections, 115 F.3d 481, 487 (7th Cir. 1997) (pre-City of Boerne case

finding ADA a valid exercise of Congress’ Section 5 powers). But see Alsbrook

v. City of Maumelle, No. 97-1825, 1999 WL 521709, at *7 (8th Cir. July 23,

1999).

First, unlike the situation in City of Boerne (involving RFRA), Congress,

when it enacted the ADA, made numerous findings of fact regarding the

pervasiveness of discrimination against disabled persons. See 42 U.S.C. §

12101(a); Amos, 178 F.3d at 218-19 (citing 42 U.S.C. § 12101(a)(2)-(a)(3),

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(a)(5)-(a)(6); H.R. Rep. No. 101-485, pt. 2 at 22, 30, 42 (1990), reprinted in 1990

U.S.C.A.A.N. 267, 303, 311-12, 324). 6 The Supreme Court has held that

6
Congress’s findings included:
(1) some 43,000,000 Americans have one or more physical or mental
disabilities, and this number is increasing as the population as a
whole is growing older;
(2) historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some improvements, such
forms of discrimination against individuals with disabilities continue
to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in
such critical areas as employment, housing, public accommodations,
education, transportation, communication, recreation,
institutionalization, health services, voting, and access to public
services;
(4) unlike individuals who have experienced discrimination on the
basis of race, color, sex, national origin, religion, or age, individuals
who have experienced discrimination on the basis of disability have
often had no legal recourse to redress such discrimination;
(5) individuals with disabilities continually encounter various forms
of discrimination, including outright intentional exclusion, the
discriminatory effects of architectural, transportation, and
communication barriers, overprotective rules and policies, failure to
make modifications to existing facilities and practices, exclusionary
qualification standards and criteria, segregation, and relegation to
lesser services, programs, activities, benefits, jobs, or other
opportunities;
(6) census data, national polls, and other studies have documented
that people with disabilities, as a group, occupy an inferior status in
our society, and are severely disadvantaged socially, vocationally,
economically, and educationally;
(7) individuals with disabilities are a discrete and insular minority
who have been faced with restrictions and limitations, subjected to a
history of purposeful unequal treatment, and relegated to a position
of political powerlessness in our society, based on characteristics that
are beyond the control of such individuals and resulting from
(continued...)

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arbitrary discrimination by the state against disabled persons violates the Equal

Protection Clause. See City of Cleburne v. Cleburne Living Center, 473 U.S.

432, 446 (1985). Thus, under Cleburne, the disabled are protected by the

Fourteenth Amendment, and Congress is entitled to enforce this protection against

the states. See Coolbaugh, 136 F.3d at 434. Given that it is Congress’s

prerogative to determine in the first instance what legislation may be needed to

enforce the Fourteenth Amendment, its findings establishing the existence of

widespread discrimination against the disabled are entitled to deference. See City

of Boerne, 117 S. Ct. at 2172.

Second, the remedial purposes of the ADA are tailored to remedying and

preventing the discriminatory conduct, and are thus congruent and proportional to

the injury to be prevented or remedied. The Act only prohibits discrimination

against “qualified individuals,” and it requires only “reasonable accommodations”

that do not impose an “undue burden” on the employer.

In sum,

The ADA, unlike RFRA, is not attempting to impose a strict scrutiny
standard on all state laws or actions in the absence of evidence of
discrimination. . . . Rather, the ADA seeks to impose a scheme that
will adequately prevent or remedy a well-documented problem of

6
(...continued)
stereotypic assumptions not truly indicative of the individual ability
of such individuals to participate in, and contribute to, society . . . .
42 U.S.C. § 12101(a).

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 discrimination without unduly burdening the state prison system. It
subjects some laws and official actions to a “reasonable
accommodation” requirement only to the point that the
accommodation is not unduly burdensome. Such a scheme, unlike
RFRA, does not redefine or expand [disabled persons’] constitutional
protections, but simply proportionally acts to remedy and prevent
documented constitutional wrongs.

Amos, 1999 WL 454509, at *6.

Accordingly, we join the Second, Fourth, Fifth, Seventh, Ninth, and

Eleventh Circuits in holding that the ADA was a permissible exercise of

Congress’ Section 5 enforcement powers.

II. ADA

We now address the merits of Martin’s claims under the Americans with

Disabilities Act.

We review the district court’s grant of summary judgment de novo. See

Smith v. Midland Brake, Inc., No. 96-3018, 1999 WL 387498, at *1 (10th Cir.

June 14, 1999) (en banc). Summary judgment is appropriate if there is no genuine

issue as to any material fact and the moving party is entitled to judgment as a

matter of law. See Fed. R. Civ. P. 56(c); Griffin v. Steeltek, Inc., 160 F.3d 591,

593 (10th Cir. 1998). In determining whether the case presents any issues of

material fact, we view the evidence and draw all reasonable inferences therefrom

in the light most favorable to the party opposing summary judgment, here Mr.

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Martin. See MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1440 (10th Cir.

1996). “Only disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of summary judgment.” Hardy

v. S.F. Phosphates Ltd. Co., No. 98-8039, 1999 WL 401722, at *2 (10th Cir. June

18, 1999).

A. Discriminatory Discharge

The ADA prohibits discrimination by covered entities against qualified

individuals with a disability. See Sutton v. United Air Lines, Inc., 119 S. Ct.

2139, 2144 (1999). Specifically, the statute provides that no covered employer

“shall discriminate against a qualified individual with a disability because of the

disability of such individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training,

and other terms, conditions, and privileges of employment.” 42 U.S.C. §

12112(a); see Sutton, 119 S. Ct. at 2144.

To prevail on a claim of discriminatory discharge under the ADA, a

plaintiff must show that (1) he or she is “disabled” within the meaning of the

ADA; (2) he or she is a “qualified individual,” that is, that he or she is able to

perform the essential functions of the job with or without reasonable

accommodation; and (3) that he or she was terminated because of his or her

disability. See Lowe v. Angelo’s Italian Foods, Inc., 87 F.3d 1170, 1173 (10th

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Cir. 1996); Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir. 1995); White

v. York Int’l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995).

In this case, the district court concluded that there was a dispute of material

fact regarding whether Martin had an actual “disability” within the meaning of the

ADA, see Martin v. Kansas, 996 F. Supp. 1282, 1289 (D. Kan. 1998), 7 and the

State has not challenged this ruling on appeal; we therefore accept the district

court’s conclusion. Accordingly, we turn our attention to the second prong of

Martin’s claim, i.e., whether Martin is a “qualified individual.”

The ADA defines a “qualified individual with a disability” as “an

individual with a disability who, with or without reasonable accommodation, can

7
The ADA defines “disability” as

(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).
Martin argued below that he was “disabled” under both subsections (A) and
(C) of this provision. The district court held that there was a genuine issue of
material fact as to Martin’s claim of “actual disability” under subsection (A);
however, the court ruled that Martin failed to survive summary judgment with
respect to his “regarded as” claim of disability under subsection (C). See Martin,
996 F. Supp. at 1288-90. Martin does not appeal the district court’s ruling with
respect to subsection (C).

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perform the essential functions of the employment position that such individual

holds or desires.” 42 U.S.C. § 12111(8).

In light of this statutory provision, this Circuit has adopted a two-step

inquiry to analyze whether a plaintiff is “qualified” under the ADA:

First, we must determine whether the individual could perform the
essential functions of the job, i.e., functions that bear more than a
marginal relationship to the job at issue. Second, if (but only if) we
conclude that the individual is not able to perform the essential
functions of the job, we must determine whether any reasonable
accommodation by the employer would enable him to perform those
functions.

Milton, 53 F.3d at 1123 (quoting White, 45 F.3d at 361-62).

1. Essential Functions

Thus, our first task is to determine whether Martin could perform the

“essential functions” of his job. The term “essential functions” is defined as “the

fundamental job duties of the employment position the individual with a disability

holds or desires.” 29 C.F.R. § 1630.2(n)(1). Whether a particular function is

essential is a factual inquiry. See 29 C.F.R. Pt. 1630, App. § 1630.2(n). The

ADA provides that in making this inquiry, “consideration shall be given to the

employer’s judgment as to what functions of a job are essential, and if an

employer has prepared a written description before advertising or interviewing

applicants for the job, this description shall be considered evidence of the

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essential functions of the job.” 42 U.S.C. § 12111(8). EEOC regulations

promulgated under the ADA provide that:

(2) A job function may be considered essential for any of several
reasons, including but not limited to the following:
(i) The function may be essential because the reason the
position exists is to perform that function;
(ii) The function may be essential because of the limited
number of employees available among whom the
performance of that job function can be distributed;
and/or
(iii) The function may be highly specialized so that the
incumbent in the position is hired for his or her expertise
or ability to perform the particular function.

29 C.F.R. § 1630.2(n)(2).

The regulations further provide that evidence of whether particular function

is essential includes not only the employer’s judgment and written job

descriptions, but also, inter alia, “[t]he amount of time spent on the job

performing the function;” as well as “[t]he consequences of not requiring the

incumbent to perform the function.” See 29 C.F.R. § 1630.2(n)(3)(iii)-(iv).

With these factors in mind, we turn to the parties’ arguments. The State

contends that the essential functions of Martin’s job included the broad list of

duties required of all COIs. In addition to the job requirements set forth in the

written position description and the rotation policy previously described, the

State’s physical requirements list for corrections officers states that corrections

officers are regularly (i.e., on a daily basis) required to stand for long periods of

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time, walk for some periods of time, stoop, kneel, crouch, and work in inclement

weather (heat, cold, rain, snow, etc.); are frequently (i.e., on a routine basis)

required to physically restrain persons in custody; and are occasionally (i.e., in a

unique or emergency event) required to lift and/or move up to 100 pounds, climb

or balance, crawl, restrain a violent inmate, assist in an evacuation, and run.

Martin argues that his “essential job functions” were the more limited

responsibilities of his tower duty post, namely, to provide surveillance; visually

monitor security controls; verbally report alarms; observe and record gate traffic;

respond to alarms by use of firearms if necessary from the tower or wall; maintain

logs; verbally report to a supervisor; and check the condition of radios, alarms

and weapons. Martin contends that he could perform these duties, and

emphasizes that he had been performing these duties satisfactorily for three years

prior to being discharged.

We have recently observed in an ADA suit that “an employer may create a

position, the nature of which requires an employee to perform a multitude of tasks

in a wide range of environments.” Anderson v. Coors Brewing Co., No. 98-1261,

1999 WL 444925, at *4 (10th Cir. June 30, 1999). In Anderson, the plaintiff

contended that the essential functions of her job were limited to her particular

assignment as a can sorter (which she was able to perform), rather than the

broader duties of the position for which she was hired, Temporary Production

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Operator (“TPO”) (which she was unable to perform). Id. at *3. We rejected her

argument that the district court should have considered only the essential

functions of a can sorter position because she spent most of her time in that

assignment, observing that the mere fact that the plaintiff spent the majority of

her time on the can sorting line did not mean that the defendant had narrowed her

job description from TPO to can sorter. Accordingly, we concluded that the

district court properly considered the essential functions of the broader TPO

position in determining whether the plaintiff was a “qualified individual” under

the ADA. See id.

In reaching our conclusion in Anderson, we relied on the Seventh Circuit’s

analysis in Miller v. Illinois Dep’t of Corrections, 107 F.3d 483 (7th Cir. 1997).

Notably, Miller involved a corrections officer who suffered severe vision

impairment in an auto accident. As a result, she was unable to perform the full

range of duties required of correctional officers, and sought a limited rotation

between the two posts she was still able to perform, telephone switchboard

operator and armory officer. See id. at 485. The Seventh Circuit rejected her

argument that she was a “qualified individual” based on her ability to perform the

functions of the two particular posts, stating:

[I]t seems to us . . . that if an employer has a legitimate reason for
specifying multiple duties for a particular job classification, duties
the occupant of the position is expected to rotate through, a disabled
employee will not be qualified for the position unless he can perform

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 enough of these duties to enable a judgment that he can perform its
essential duties. If it is reasonable for a farmer to require each of his
farmhands to be able to drive a tractor, clean out the stables, bale the
hay, and watch the sheep, a farmhand incapable of performing any of
these tasks except the lightest one (watching the sheep) is not able to
perform the essential duties of his position. . . . In the case of
correctional officers . . ., the reason for having multiple able workers
who rotate through the different duty positions is to be able to
respond to unexpected surges in the demand for particular abilities.
The prison has to be able to call upon its full staff of correctional
officers for help in putting down a prison riot, and therefore each
officer must have experience in the positions . . . as well as the
capability [to respond].

Id. (citations omitted) (quoted in Anderson, 1999 WL 444925, at *4).

We note that in addition to the Seventh Circuit, several district courts have

held that an essential function of a corrections officer position is the ability to

perform a wide range of duties (usually involving inmate contact). See Kees v.

Wallenstein, 973 F. Supp. 1191, 1197 (W.D. Wash. 1997), aff’d, 161 F.3d 1196

(9th Cir. 1998); Johnson v. Maryland, 940 F. Supp. 873, 878 (D. Md. 1996),

aff’d, 113 F.3d 1232 (4th Cir. 1997) (unpublished); McDonald v. Kansas, 880 F.

Supp. 1416, 1423 (D. Kan. 1995) ; Miller v. California Dep’t of Corrections, No.

C-96-01262-VRW, 1998 WL 917525, at *5 (N.D. Cal. Dec. 30, 1998)

(unpublished).

We find McDonald particularly instructive. McDonald involved a

corrections officer at LCF who contended that, although he could not perform the

duties of those posts requiring physical restraint or contact with inmates or the

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ability to respond to emergencies, he could perform the duties of certain other

“light duty” posts (including tower duty), and therefore sought to have his post

rotation limited to such positions. See McDonald, 880 F. Supp. at 1422-23. The

district court concluded that, on the undisputed facts of record, the essential

functions of Correctional Officer II at LCF “go well beyond” those involved in

tower duty and the other light duty positions, observing that, “[c]learly, the ability

to stand for long periods, to respond quickly to emergencies, and to use force to

subdue violent inmates, are more than marginally related to the requirements of

the correctional officer position.” Id. at 1423. The plaintiff admitted that he

could not perform what the court determined to be essential functions of an LCF

corrections officer, and the court therefore ruled that no reasonable

accommodation was possible because no permanent light duty positions existed at

LCF that the plaintiff was qualified to perform, nor did the ADA require the

prison to create such a position. See id.

Turning to the evidence in this case, we consider the factors listed in 29

C.F.R. § 1630.2(n) for determining the essential functions of a job, and conclude

that Martin has failed to put forth sufficient evidence to create a genuine dispute

of material fact rebutting the State’s position that the essential functions of

Martin’s job were those broader functions of a corrections officer position, as

opposed to the limited duties of a particular post. First, the State’s written

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position description and established post rotation policy reflect the State’s

judgment that corrections officers at KDOC are expected to perform a range of

duties at a variety of posts, some of which require physical exertion and agility.

The State has articulated a legitimate interest in having all corrections officers be

capable of performing duties at all positions, in particular, the ability to respond

to disturbances or prison riots. Although Martin points out that there are not a

“limited number” of employees available who would be able to respond to such

disturbances, see 29 C.F.R. § 1630.2(n)(2)(ii), we observe that the very reason a

corrections officer position exists is to provide safety and security to the public,

as well as to LCF employees and inmates; as such, the ability to provide safety

and security, including the ability to respond without hesitation or limitation in an

emergency is absolutely inherent to that position. See id. § 1630.2(n)(2)(i).

Likewise, Martin would submit that continuous running and the physical restraint

of violent inmates without assistance is not an everyday occurrence for any COI

(let alone a COI assigned to tower duty), thereby undermining the State’s

characterization of these abilities as essential job functions. See id. §

1630.2(n)(3)(iii). However, we believe that the potentially dire consequences of

not requiring a corrections officer to have those capabilities (even if exercised

only occasionally) underscores their importance. See id. § 1630.2(n)(3)(iv).

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 Finally, Martin suggests that his seniority would have permitted him to

remain on tower duty indefinitely, a position he capably performed for at least

three years. Essentially, he argues that his seniority and pattern of assignment

have modified his job description to include only tower duty. Although he had

obtained tower post assignments for three years prior to his discharge, under the

terms of LCF’s post rotation policy, Martin cannot show that he was specifically

entitled to, or guaranteed to obtain, any particular post based on his seniority.

Even assuming, however, that he could have pulled tower duty for the remainder

of his career at LCF, his tower assignment does not, in and of itself, call into

question the State’s assessment of his essential job functions as a COI. Martin

was hired as a Corrections Officer I, not a Tower Officer. As was the case with

the plaintiff in Anderson, even if Martin spent the majority of his time at LCF

working a particular post assignment, that fact does not mean that the State

narrowed Martin’s COI job description to encompass only the duties of the

particular post, see Anderson, 1999 WL 444925 at *3, especially given LCF’s

established rotation policy for its corrections officers, and considering the unique

safety and security requirements of a maximum security correctional facility. We

conclude that the evidence presented by Martin is insufficient for a jury to find

that the essential functions of Martin’s job were limited to the duties of his tower

post position.

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 2. Reasonable Accommodation

Having concluded that the essential functions of Martin’s job were the

broader duties of a COI, and in light of the fact Martin did not provide a medical

release as requested that indicated he could perform all the duties of a COI

without limitation, we turn next to the second step of the analysis in Milton, i.e.,

whether any reasonable accommodation by LCF would enable Martin to perform

the essential functions of his job. We conclude that the record fails to establish

that any reasonable accommodation was possible.

Martin insists that he never at any time requested any accommodation. In

any event, the only accommodation we can glean from the facts on this record

would be for LCF to agree to permit Martin to remain on tower duty permanently.

However, such an accommodation, even if it had been explicitly proposed, is not

reasonable because it is tantamount to asking LCF to provide a permanent light

duty post. No such permanent assignments exist at LCF, and the ADA does not

require an employer to create a new position or even modify an essential function

of an existing position in order to accommodate a disabled worker. See Smith v.

Midland Brake, Inc., No. 96-3018, 1999 WL 387498, at *10 (10th Cir. June 14,

1999) (en banc); White, 45 F.3d at 362; 29 C.F.R. Pt. 1630, App. § 1630.2(o) (an

employer is not required to reallocate job duties to change the essential functions

of a job); see also Malabarba v. Chicago Tribune, Co., 149 F.3d 690, 697 (7th

- 28 -
Cir. 1998) (ADA does not require employers to convert temporary light duty jobs

into permanent ones); Nguyen v. IBP, Inc., 905 F. Supp. 1471, 1485-86 (D. Kan.

1995) (same).

In sum, Martin has failed to establish a genuine dispute of material fact

rebutting the State’s contention that he is a “qualified individual” under the ADA.

Because Martin cannot meet the second prong of his prima facie case of

discriminatory discharge under the ADA, the district court properly granted

summary judgment to the State on this claim.

B. Impermissible Medical Inquiry

Martin contends that, but for the State’s request for information in its

Disclosure of Disability Form, he would not have disclosed his disability, and

probably still would be working at LCF. He claims that the State’s disability

disclosure policy constitutes an impermissible medical inquiry under the ADA.

Under 42 U.S.C. § 12112(d)(4)(A), an employer

shall not make inquiries of an employee as to whether such employee
is an individual with a disability or as to the nature or severity of the
disability, unless such . . . inquiry is shown to be job-related and
consistent with business necessity. 8

8
We note that the ADA establishes different rules for pre-offer job
applications, see 42 U.S.C. § 12112(d)(2); post-offer pre-employment
examinations, see id. § 12112(d)(3); and inquiries of active employees, see id. §
12112(d)(4).

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(Emphasis added.); see also 29 C.F.R. § 1630.13(b). 9 And, under §

12112(d)(4)(B), an employer is explicitly authorized to “make inquiries into the

ability of an employee to perform job-related functions.”

As a general rule, the ADA prohibits a covered entity from requiring a

medical examination of an employee or to make inquiries as to whether an

employee is an individual with a disability or as to the nature or severity of such

disability. See 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.13(b). The purpose

of this prohibition is to prevent inquiries of employees that do not serve a

legitimate business purpose. See 29 C.F.R. Pt. 1630, App. § 1630.13(b).

However, an employer may make medical inquiries of employees if the inquiry is

shown to be job-related and consistent with business necessity. See 42 U.S.C. §

12112(d)(4)(B); 29 C.F.R. § 1630.14(c). Specifically, the ADA “permits

employers to make inquiries or require medical examinations (fitness for duty

exams) when there is a need to determine whether an employee is still able to

perform the essential functions of his or her job. The provision permits

employers . . . to make inquiries or require medical examinations necessary to the

reasonable accommodation process . . . .” 29 C.F.R. Pt. 1630, App. § 1630.14(c).

The EEOC promulgated regulations governing prohibited and permissible
9

medical inquiries at 29 C.F.R. § 1630.13–.14.

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 The State contends that the Disclosure of Disability Form merely sought

verification of an employee’s ability to perform the essential functions of his job,

or to begin the process of identifying appropriate and necessary reasonable

accommodations for employees in need of such accommodation. 10 To support its

assertion, the State points to LCF Order 3,102, which, as noted previously,

provides that “information submitted concerning disabilities or handicaps shall be

considered in security post assignments and reasonable accommodation shall be

made as necessary.” Relying on this written policy, the State maintains that the

disclosure request is appropriately job-related and consistent with business

necessity.

Martin contends that the disability disclosure form violates the ADA

because it requests that the employee identify both the type of disability and the

severity of the disability by placing an “X” after any of the listed categories of

disabilities “which present[] a substantial barrier to your employment

opportunities,” and, where more than one disability is identified, circling that

disability “which MOST affects your changes at employment.” We acknowledge

10
The State also emphasizes that the responses to the form were voluntary.
However, even assuming that Martin understood that his response was wholly
voluntary, we fail to discern anything in the statutory or regulatory framework
that indicates that the legality of a medical inquiry (as opposed to a medical
examination) hinges on the voluntariness of an employee’s response to that
inquiry.

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that the ADA regulations state that “[a]n employer may not use an application

form that lists a number of potentially disabling impairments and ask the

applicant to check any of the impairments he or she may have.” 29 C.F.R. Pt.

1630, App. § 1630.14(a) (emphasis added). However, this regulation, cited by

Martin in support of his claim, addresses pre-employment inquiries. Under 42

U.S.C. § 12112(d)(2), an employer may not make pre-employment inquiries of an

applicant as to whether the applicant is an individual with a disability, or as to the

nature or severity of such disability (although an employer may make a pre-

employment inquiry about the applicant’s ability to perform job-related

functions). However, because the Disability Disclosure Form in this case is not a

pre-employment inquiry, it is governed not by § 12112(d)(2), but rather, by §

12112(d)(4), which applies to inquiries of existing employees, and which excepts

from the prohibition against inquiries regarding the nature or severity of a

disability those inquiries that are shown to be job-related and consistent with

business necessity.

Martin has failed to present evidence to rebut the State’s written policy that

the disclosure request is intended to gather information to be used in setting post

assignments and establishing reasonable accommodations, which are job-related

purposes that are consistent with business necessity. Accordingly, Martin has

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failed to establish that the State’s policy violates § 12112(d)(4) of the ADA. The

district court properly awarded summary judgment to the State on this claim.

C. Accommodation Policy

Finally, Martin contends that LCF had a policy of refusing to accommodate

individuals with permanent disabilities. Martin claims that the State had a

blanket policy of requiring employees to be “100% healed” before returning to

work, which violates the ADA because the alleged policy does not allow for a

required case-by-case assessment of an individual’s ability to perform the

essential functions of his or her job. In support of his claim, Martin relies on the

State’s light duty policy.

It is undisputed that LCF had a policy of assigning lighter duty posts to

individuals with temporary physical impairments. However, the policy did not

provide for permanent assignments to these lighter duty posts; in Martin’s view, if

an individual is unable to get full medical clearance within six months, the State

will terminate the individual’s employment.

We agree with the district court that the State’s light duty policy is not

tantamount to a “100% healed” policy or a refusal to accommodate permanent

disabilities. See Martin, 996 F. Supp. at 1298. As we have acknowledged

previously, the ADA does not require an employer to provide permanent light

duty assignments for disabled employees. At best, Martin shows only that the

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State’s policy required him to be able to perform the essential job functions of a

corrections officer, with or without accommodation. That is not a violation of the

ADA; in fact it is what the ADA requires Martin to show to prove he is a

“qualified individual.”

CONCLUSION

We AFFIRM the district court’s denial of the State’s motion asserting

Eleventh Amendment immunity; we likewise AFFIRM the district court’s award

of summary judgment to the State on the merits of each of Martin’s ADA claims.

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