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An employer that fails to engage in an “interactive process” with a disabled employee who is seeking an accommodation can still win summary judgment if the employee fails to show that there were any jobs he could have performed, a federal appeals court has ruled. In Donahue v. Consolidated Rail Corp., the 3rd U.S. Circuit Court of Appeals rejected the argument — made by both the plaintiff and the Equal Employment Opportunity Commission in a friend-of-the-court brief — that failure to engage in good faith in the interactive process is alone sufficient to defeat summary judgment and might even give rise to an independent cause of action. “In a failure-to-transfer case, if, after a full opportunity for discovery, the summary judgment record is insufficient to establish the existence of an appropriate position into which the plaintiff could have been transferred, summary judgment must be granted in favor of the defendant — even if it also appears that the defendant failed to engage in good faith in the interactive process,” U.S. Circuit Judge Samuel A. Alito wrote. The court also rejected Charles Donohue’s argument that after he suffered a heart attack, he should have been given the job of train dispatcher, finding that his own doctor’s opinion that he could suffer from blackouts without warning showed that he would pose too much of a safety risk in that post. Donahue worked for many years on Conrail freight trains, primarily as a train conductor and engineer. In February 1993, he had a heart attack at home. In May 1993, he returned to work, but a few months later, he passed out at work. His cardiologist concluded that Donahue’s heart attack and blackout were caused by a heart condition that can suddenly cause the heart to beat extremely quickly. To help control the condition, Donahue had a defibrillator surgically installed. The device does not prevent the onset of tachycardia, but instead is designed to activate during tachycardic episodes and to shock the heart back into its normal rhythm. After Donahue had undergone the surgery and several months of convalescence, his doctor wrote a letter clearing him to begin working again. But the doctor specifically warned Donahue that he remained at risk of passing out unexpectedly and that he should not work on or around moving trains. Despite his doctor’s warnings, Donahue asked for work on moving trains. In March 1994, three days after beginning work as a train conductor, he passed out while walking down a train track and was found by co-workers. After recovering, Donahue asked his supervisors if there were any jobs that he could perform at Conrail in spite of his condition. The supervisors suggested several positions. He applied for at least one of these and was turned down because there were no vacancies. When he again asked his supervisors for advice, they suggested that he consider locomotive school but warned him that he would not be permitted to take any job at Conrail unless his doctor cleared him to work. Demoralized, Donahue decided to apply for Railroad Retirement Board disability benefits. He was granted full benefits and was terminated. He then filed suit against Conrail under the Rehabilitation Act of 1973. In the suit, he alleged that at the time he left his job, Conrail had vacancies in the train dispatcher position. But Conrail argued that, due to his heart condition, Donahue was unfit for the job because he posed a safety risk. Train dispatchers remotely monitor a stretch of railroad track and the trains on it. On hearing of a mishap, a train dispatcher must dispatch emergency crews to the scene and route traffic away. The dispatcher is also responsible for alerting both train crews and emergency crews about congestion or dangerous situations. Dispatchers do not constantly control signals but must be prepared to do so in an emergency. Because dispatchers must be alert when they are on duty, and because the consequences of train wrecks can be severe, they are not allowed to work while under the influence of medications that might make them drowsy. Alito found that an employer’s obligation to provide a reasonable accommodation “does not require the employer to create a new job,” but that an employer “may be required to transfer an employee to an existing position.” In such a failure-to-transfer case, Alito said, the plaintiff bears the burden of demonstrating that there was “a vacant, funded position” at or below the level of the former job and that he was qualified to perform the “essential duties” of the job with reasonable accommodation. Donahue sued under that theory, Alito said, alleging that, at the time of his termination, there were vacant positions at an appropriate level for which he was qualified. But Senior U.S. District Judge Marvin Katz dismissed the claim, finding that a reasonable jury could not find there were any such positions. Alito said the principal question in Donahue’s appeal was whether he was able to perform the job of train dispatcher without posing a significant risk to others. Although both sides agreed that Conrail was not required to make Donahue a train dispatcher if doing so would have created a “significant risk” to the health or safety of others, they disagreed about the burden of proof on that issue. Conrail argued that Donahue, as part of his burden of proving that he was “qualified” for the train dispatcher position, was obligated to show that he would not present such a risk. Donahue and the EEOC, relying on certain provisions of the Americans with Disabilities Act, argued that Conrail bore the burden of proof. But Alito said the court found it unnecessary to decide this question because “no reasonable jury could fail to find that … employing Donahue as a train dispatcher would have presented a significant risk to others.” Even after his defibrillator was installed, Alito said, Donahue passed out suddenly along a stretch of railroad track, and the risk of his passing out unexpectedly was high enough that his own doctor refused to clear him to work near trains. “A train dispatcher must be conscious and alert,” Alito wrote. “The train dispatcher’s job involves monitoring railroad track to insure that trains move without mishap. … If a train dispatcher passes out on the job, railroad employees and others could be injured or killed.” Donahue argued that it is not important for every dispatcher to be conscious at all times because several dispatchers work together in the same room. Conrail could have eliminated the danger, he said, by instructing co-workers to watch him and, if necessary, to take over his duties. Alito disagreed, saying, “Employers are not required to modify the essential functions of a job in order to accommodate an employee.” Donahue’s suggestion that someone could “cover” for him, Alito said, “is thus not an accommodation designed to help him perform an essential duty of the job. Rather, it is a request to be exempted from an essential duty.”

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