U.S.

Department of Justice

Civil Rights Division

Coordination and Review Section

P.O. BOX 66118

Washington, D.C. 20035-6118

FEB 6 1995
XX
XX
XX

RE: Complaint Number X

Dear Mr. XX :

This letter constitutes the Department of Justice's Letter

of Findings with respect to the complaint you filed concerning
alleged violations of Title II of the Americans with Disabilities
Act of 1990 (ADA) by the West Peoria Fire Protection District
(District). Title II of the ADA, 42 U.S.C. ​ 12131-12134,
prohibits discrimination against qualified individuals with
disabilities on the basis of disability by State and local
governments. You alleged that, as a volunteer Firefighter in the
District, you were not allowed to drive the District's emergency
vehicles and were denied a promotion because of your disability.

The coordination and Review Section of the Civil Rights Division has
responsibility for coordinating the investigation of
complaints under Title II by Federal agencies and investigating
complaints for which the Department of Justice is the designated
agency.

As discussed below, the Department has determined that the

District has not violated Title II with respect to the issues
raised in your complaint. Further, the District's assurances
that you will be eligible for promotion to higher ranks and
its proposal to modify the current testing procedures will ensure
that you have an equal opportunity for advancement.
 Each complaint investigation conducted by this Department is
done on a case-by-case basis. This determination refers solely
to the allegations you raised and is based on the facts presented
and the evidence submitted by you and the District.

This concludes our investigation and we are closing this

complaint effective the date of this letter. The remainder of
this letter sets forth the results of the Department's review.
01-00264
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If you are dissatisfied with our determination, you may file a

complaint presenting your allegations of discrimination in an
appropriate United States District Court under Title II of the
ADA.

You should be aware that no one may intimidate, threaten, or

coerce, or engage in other discriminatory conduct against anyone
because he or she has either taken action or participated in an
action to secure rights protected by the ADA. Any individual
alleging such harassment or intimidation may file a complaint
with the Department of Justice. We would investigate such a
complaint if the situation warrants.

Under the Freedom of Information Act, it may be necessary to

release this document and related correspondence upon request.
In the event that we receive such a request, we will seek to
protect, to the extent provided by law, personal information
which, if released, could constitute an unwarranted invasion of
privacy.

If you have any questions about this letter, please feel

free to contact Mr. Thomas Esbrook of my staff at (202) 307-2940.

Sincerely,

Merrily A. Friedlander
Acting Chief
Coordination and Review section
Civil Rights Division
Enclosure : Findings

cc: Robert H. McGann

President, Board of Trustees
West Peoria Fire Protection District

01-00265

XX v. West Peoria Fire Protection District

Complaint Number XX

FINDINGS

Mr. XX , a volunteer Firefighter in the District,

filed a complaint alleging that he has been denied the
opportunity to drive the District's emergency vehicles because of
his disability. Mr. XX has a congenital condition that
resulted in a below-the-elbow amputation of his left arm. He
asserts that this disability does not interfere with his ability
to successfully perform all of the duties and responsibilities of
a Firefighter. The complainant alleges that he has been denied
the right to drive emergency vehicles based on fears of increased
insurance cost liability and negative publicity, should he be
involved in an accident. He further alleges that the denial of
driving privileges has prevented him from being promoted to
higher ranks. The promotion ladder in the District goes from
Firefighter to Engineer, Captain, Assistant Chief, and Chief.
To become an Engineer, one must be able to drive the District's
emergency vehicles.
 Title II prohibits discrimination on the basis of disability
by public entities. A "public entity" means any State or local
government or any department, agency, special purpose district,
or other instrumentality of a State or local government. 28 CFR
​ 35.104. (emphasis added) The evidence provided establishes
that the District is a "special purpose district." The District
noted in its response to the Department that it is a special
district under Illinois law and is governed by a Board of
Trustees appointed by the County Board of the county in which it
is located. Documents submitted reflect that the District is a
separate municipal corporation established pursuant to the Fire
Protection District Act, 20 ILCS 705 ​ 1. The District is,
therefore, a public entity covered by Title II of the ADA.

Issues

Whether the District violated Title II of the ADA by

refusing to allow Mr. X to drive and denying him the
opportunity for promotions within the District in violation of
the Title II implementing regulation, 28 C.F.R. ​ 35.130 (a),
which states "no qualified individual with a disability shall, on
the basis of disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any public
entity,..."

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Complainant's Position

XX has been a Firefighter in the District since

1981. Prior to 1985, he was permitted, on occasion, to drive
certain emergency vehicles such as the ambulance and rescue
truck.

Mr. X seeks the opportunity to have both driving

privileges and promotion opportunities as a member of the
District's fire department. He is aware that in order to be
promoted to the next higher rank of Engineer, the ability to
safely operate the District's emergency vehicles is essential.
He has completed all required certifications for promotion to
Engineer, except for driving. He disagrees with the District's
evaluations of his driving abilities. He acknowledges that his
disability gives him trouble handling the larger emergency
vehicles, known as "pumpers," but claims he is competent to drive
smaller vehicles, such as the ambulance and rescue truck. He
wants the opportunity to drive these smaller vehicles and to be
promoted. Mr. XX occasionally uses an artificial prosthesis
on his arm. However, the prosthesis actually hinders his ability
to drive, so he does not use it while driving. He believes he
can safely operate emergency vehicles with one arm.

District's Position

The District stated that it welcomed Mr. XX as a

volunteer firefighter well before passage of the ADA, knowing his
disability. The District's position is that Mr. XX is not
allowed to drive any emergency vehicles. The District stated
that it has never granted Mr. XX permission to drive and that
no reasonable accommodations can be made to allow him to safely
do so, in a way that will not endanger other firefighters or the
public. Each time Mr. XX requested permission to drive, his
request was denied, based on evaluations of his driving skills.
In all other respects, Mr. XX has been allowed to perform as
a Firefighter and has done so satisfactorily.

Evidence Presented

The District asserted that driving emergency vehicles is a

requirement for promotion to the position of Engineer. The
District maintains a fleet of vehicles used in emergencies,
ranging from smaller rescue trucks, to ambulances, to larger fire
trucks, known as "pumpers." An Engineer must be able to drive a
pumper, as well as carry out other responsibilities of
maintaining and operating the pumper. For all positions except
Engineer, such as Captain, Assistant Chief, or Chief, driving
emergency vehicles is not an essential job function.

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The District acknowledges that Mr. XX "inability to

drive does adversely impact his opportunities for promotion."
The District believes Mr. XX would be a threat to the safety
of the public and other firefighters if he were allowed to drive.
The District stated that "no distinctions are made between
driving under emergency and non-emergency situations, as due to
the size of the department, the number and type of apparatus, and
the department's responsibilities, an emergency can occur at any
time, and a non-emergency situation become an emergency."
According to District officials, the skills needed to safely
operate a vehicle include the ability to navigate fire apparatus
in all emergency and non-emergency situations and to use both
hands in operating a vehicle.

The District's promotion ladder is as follows: in order to

become an Engineer, one must first have been a Firefighter; for
Captain, one must come from the ranks of Engineer or higher; for
Assistant Chief, one must come from the rank of Captain or
higher; for Chief, one must come from the rank of Assistant Chief
or higher.

The "Engineer Training Progress Report" for XX

shows that he has completed all requirements for promotion to
Engineer with the exception of the driving test. Mr. XX
ability to safely operate District vehicles has been evaluated on
several occasions. The District supported its position with
respect to the safety of allowing Mr. XX to drive with
written evaluations by Mr. XX supervisors. For example:

In 1983 during a drivers test on a rescue vehicle the

evaluator observed: "Concerned about taking evasive maneuvers to
avoid an accident..."

In 1985 Captain McGann wrote: "I do not feel that XX

can safely operate a moving ... vehicle such as we have...
I feel he would be detrimental to himself and the crew riding the
vehicle. ... I believe that he does not have full control of the
apparatus."

On another occasion (undated) Captain Doering concluded:"I

don't think XX can control a emergency vehicle with one arm.
... He scares me when he is driving."

When tested on several occasions in 1985 as part of his

Drivers Road Test, Mr. XX was unable to satisfactorily
complete the driving test. Observations made by Assistant Chief
Deschle, who tested him on three different fire engines,
included:
01-00268
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. . . unable to control, shift smoothly, or turn a manual

shift engine company... unable to control steering wheel....
Should you hit a winter pot hole or any road hazard you
would not be able to maintain control or take evasive action
quick enough to prevent possible injury to the
firefighters...

In 1988, after receiving another request from Mr. XX for

driving privileges, the Chief evaluated him driving both an
engine and an ambulance. The Chief, Mr. Robert Stecher, observed
the following:

... difficulty using turn signal...vehicle not under

control.

... difficulty in shifting ... vehicle not under

control...

The above tests were conducted under normal conditions.

Due to the fact that these vehicles are used under many
adverse conditions... I do not feel that XX could
safely operate either the ambulance or an engine company.
I also question his ability to make evasive maneuvers.
It is my recommendation that because of the above facts,
XX can not be a driver for the department.

Legal Standards

The Title II regulation prohibits individuals with

disabilities from being denied the benefits of the programs,
services and activities of public entities on the basis of
disability. 28 CFR 35.130(a). The regulation also requires
public entities to make reasonable modifications in policies,
practices, or procedures when necessary to avoid discrimination
on the basis of disability. 28 CFR 35.130(b)(7). A public
entity is not required to permit an individual with a disability
to participate in its programs and activities if that individual
poses a direct threat to the health or safety of others. A
"direct threat" is a significant risk to the health and safety of
others that cannot be eliminated by a modification of policies,
practices, or procedures, or by the provision of auxiliary aids
or services. (See the preamble to the Title II regulation, 56
Fed. Reg. 35,701 (1991).)

Although this case involves volunteer work (as opposed to

employment), we looked to Title I of the ADA for guidance in
determining whether the District discriminated against the
complainant on the basis of disability. Title I prohibits
discrimination on the basis of disability against qualified
individuals with disabilities in regard to job assignments and

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promotion. 29 CFR 1630.4. Title I makes it unlawful for a

covered entity to use qualification standards that screen out an
individual with a disability or a class of individuals with
disabilities, on the basis of disability, unless that
qualification standard is job-related and consistent with
business necessity. 29 CFR 1630.10. The term "qualification
standard" may include a requirement that an individual shall not
impose a direct threat to the health or safety of the individual
or others in the workplace. 29 CFR 1630.15(b)(2).

Analysis

The complainant alleges that the District's failure to let

him drive emergency vehicles denies him benefits that other
volunteers receive, as well as the opportunity for promotion on
the basis of disability. The District asserts that Mr. XX
disability directly affects his ability to safely operate its
vehicles, making him a direct threat to the safety of other
firefighters and the public. The District also claims there are
no reasonable modifications that would allow the complainant to
safely operate its emergency vehicles. The complainant
acknowledges that there are no modifications that would allow him
to drive the larger vehicles, and that he has never requested
any. He maintains that he is able to operate smaller vehicles
such as the ambulance and rescue truck in a safe manner, and that
he can drive the larger pumpers with some difficulty.

The evidence submitted by the District establishes that

qualified supervisory staff have conducted individualized
assessments of XX driving skills. Each evaluation
appeared objective and each raised concerns about Mr. XX
ability to control a vehicle and to take evasive maneuvers in the
event of a sudden emergency. The conclusions of each evaluator
were consistent in expressing concern for the safety of other
firefighters and the public, should Mr. XX be permitted to
drive.

The District stated that its decision to deny Mr. XX

driving privileges was based on identifiable and specific
concerns for public safety, and not on generalizations or
stereotypes about the effects of his disability. Both the
complainant and the District agreed there are no modifications or
accommodations for his disability that would mitigate these
safety concerns, and both agreed that driving is an essential
element of the position of Engineer. However, Engineer is the
only position in the District that requires driving as an
essential element of the job. While maintaining its view that

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the complainant cannot be permitted to drive emergency vehicles,

the District subsequently indicated that it could modify its
promotion criteria with respect to Mr. XX to allow him the
opportunity for promotion without first becoming an Engineer.
The District also said that it would consider modifying the
essential elements of the Engineer 'Position. Recently, the
District did, in fact, nominate Mr. XX for promotion to the
position of Captain. However, Mr. XX declined the offer at
that time to allow another colleague to be promoted. He
indicated he would he interested in a future promotion.

Conclusion

Based upon the facts as discussed above, the Department has

concluded that the District's decision to deny the complainant's
request for driving privileges as a Firefighter was based on
identifiable and specific concerns for public safety, and not on
generalizations or stereotypes about the effects of his
disability. In addition, both the complainant and the District
agreed that there are no modifications or accommodations for his
disability that would mitigate these safety concerns. For these
reasons, we find that, in this case, the District's denial of
driving privileges does not constitute discrimination on the
basis of disability against the complainant. Moreover, the
subsequent actions taken to provide the complainant the
opportunity for promotion successfully resolve that aspect of the
complaint.

01-00271