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                                No. 95-2819
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Jo Anne Allison,                      *
                                      *
           Plaintiff-Appellee,        *   Appeal from the United States
                                      *   District Court for the
     v.                               *   Western District of Missouri.
                                      *
Department of Corrections; Dora   *
B. Schriro, Director,             *
Department of Corrections;        *
George Lombardi, Director,        *
Division of Adult Institutions;   *
Mike Groose, Superintendent,      *
Jefferson City Correctional       *
Center,                               *
                                      *
           Defendants-Appellees.      *


                               _____________

                    Submitted:    March 13, 1996

                           Filed: August 30, 1996
                              _____________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.

     Jo Anne Allison brought this action alleging claims of discrimination
on the basis of disability in violation of the Americans with Disabilities
Act of 1990 (ADA), 42 U.S.C. § 12112, and the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 794.   The individual defendants (Dora B. Schriro,
Director of the Missouri Department of Corrections; George Lombardi,
Director of Adult Institutions; and Mike Groose, Superintendent of the
Jefferson City Correctional Center) appeal the district court's denial of
their motion for summary judgment based on qualified immunity.   We reverse.
                                     I.


     Jo Anne Allison is a former employee of the Missouri Department of
Corrections, where she served the Department as a Correctional Officer I
(CO I).   The state merit system defines the CO I job classification,
stating that a CO I "performs a variety of assignments involving the
supervision, control and treatment of inmates in a state adult correctional
facility."    (Appellants'    App.   at   94.)   The   definition   offers   a
nonexhaustive list of work examples that require a CO I, among other
things, to work in all parts of the prison, to "[s]upervise[] movement of
inmates inside and outside the facility," and to "take[] required action
during emergencies to prevent escapes and suppress disorders."      (Id.)


     On May 13, 1992, Allison injured her back at work.       In July 1992,
after exhausting her sick leave, Allison took "leave without pay" status
because she was physically unable to return to work.      Following a fusion
of her cervical spine and a period of rehabilitation, her physician
reported to the Department that Allison could return to work in a control
room position as of January 25, 1993.      Allison's physician specifically
noted, however,   that she should not work in combat or conflict situations
where she might have to restrain an inmate.


     Given Allison's medical restrictions, George Lombardi, the Director
of Adult Institutions, advised Allison that she would be terminated
effective February 2, 1993, unless she could obtain a full release from her
doctor that would allow her to perform all of the duties listed for the CO
I classification.   Allison never received a full release from her doctor,
and the Department did not allow her to return to work with limitations
that would prevent her from performing all of the duties required of a CO
I, which include the ability to maintain physical control of inmates in
conflict situations.   The Department of Corrections terminated Allison's
employment on February 2, 1993.




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     In October 1993, Allison filed an application for social security
benefits, claiming that she was then totally disabled.    On March 2, 1994,
the Social Security Administration denied her application, finding as
follows:   "We realize you are unable to work at the present time, but you
should recover within twelve months of October 1, 1993, to return to your
past job as a correction officer."       (Appellants' App. at 463.)    The
Missouri State Employees Retirement System allowed Allison to receive
disability benefits without any adversarial proceeding.


     In August 1994, Allison brought this action against the Department
of Corrections, two individual department and division directors, and the
superintendent of the facility where she was employed (Schriro, Lombardi,
and Groose), alleging workplace discrimination on the basis of disability
and failure to accommodate in violation of the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12112; Section 504 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. § 794; and the Missouri Human Rights Act, Mo.
Ann. Stat. § 213.055.1(1).   Specifically, Allison asserted that even with
her physical restrictions, she was otherwise qualified to perform all of
the duties required of a CO I that are necessary while stationed only in
the control room or the guard towers.    The defendants moved for summary
judgment, asserting that (1) Allison is not "otherwise qualified" within
the meaning of the ADA because (a) she previously stated that she is
totally disabled and she should be judicially estopped from denying it now,
and (b) she cannot perform the essential job functions of a CO I; (2) she
is not entitled to compensatory or punitive damages; (3) Eleventh Amendment
immunity bars jurisdiction of the pendent state claim; and (4) the
individual defendants are entitled to qualified immunity from suit.
     The district court granted summary judgment in part, dismissing the
pendent Missouri Human Rights Act count on Eleventh Amendment grounds and
concluding that Allison is not entitled to




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punitive damages.       The district court denied summary judgment on the
remaining issues.      Relevant to this appeal, the district court denied
summary judgment to the individual defendants on the basis of qualified
immunity, concluding that material issues of fact existed on the issue of
whether a reasonable official in the defendants' position would have known
that the act of terminating Allison would violate her rights.


     The individual defendants appeal the district court's denial of
summary judgment on their claim of qualified immunity.


                                       II.


     We initially pause to consider our jurisdiction to hear this appeal.
A district court's denial of qualified immunity is immediately appealable
as a final decision under the collateral order doctrine where "(1) the
defendant   [i]s   a   public   official   asserting   a   defense   of   `qualified
immunity,' and (2) the issue appealed concern[s], not which facts the
parties might be able to prove, but, rather, whether or not certain given
facts show[] a violation of `clearly established' law."         Johnson v. Jones,
115 S. Ct. 2151, 2155 (1995) (quoting Mitchell v. Forsyth, 472 U.S. 511,
528 (1985)).


     Allison contends that we lack jurisdiction over this appeal because
the district court denied summary judgment on the basis of disputed issues
of fact.    See id. at 2153 (holding that a determination of whether a
triable issue of fact exists in the pretrial record is not immediately
appealable).   To the contrary, the individual defendants contend that the
only issue in this appeal is a question of law.            See id. at 2156 (noting
that a denial of qualified immunity is immediately appealable so long as
it turns on an issue of law; namely, "the purely legal issue [of] what law
was `clearly established'").        The district court denied the individual
defendants' claims of qualified immunity, stating,




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"[t]his court cannot say that there is no genuine issue of material fact
as to whether a reasonable official would have known that their alleged
actions violated plaintiff's rights."                  (Appellants' Addend. at 12.)


        The crux of the individual defendants' argument is that their actions
were reasonable given their knowledge at the time of Allison's termination.
This issue is immediately appealable upon the denial of a qualified
immunity claim.     The Supreme Court has explained that "Johnson permits [a
public official] to claim on appeal that all of the conduct which the
District Court deemed sufficiently supported for purposes of summary
judgment met the Harlow [v. Fitzgerald] standard of `objective legal
reasonableness.'"       Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996).                   See
also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (stating the standard
of objectively reasonable conduct).              Accordingly, we conclude that we have
jurisdiction to consider the legal question of whether, in view of the
facts that the district court deemed sufficiently supported for summary
judgment purposes, the individual defendants' conduct was objectively
reasonable given their knowledge and the clearly established law.


        To the extent the individual defendants assert issues concerning what
facts    Allison   may    or   may    not   be       able   to   prove   at   trial,   we   lack
jurisdiction to consider them in this qualified immunity appeal.                            For
instance,    we    do    not   have    jurisdiction         to    consider    the   individual
defendants' arguments regarding allegedly conflicting statements made by
Allison in a social security application and an affidavit.                       Because both
statements were made after Allison was terminated, they are not relevant
to the qualified immunity issue -- whether the individual defendants acted
reasonably given their knowledge at the time of her discharge.                      We likewise
lack    jurisdiction to review the district court's determination that
material issues of fact remain for trial on the merits of Allison's claims,
such as whether she is an otherwise




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qualified individual within the meaning of the relevant Acts and whether
the ability to physically restrain inmates is an essential function of the
CO I job classification.   These issues will be resolved at trial and are
appealable only after a final judgment has been rendered.


     We now consider the merits of this limited appeal, which is whether
the individual defendants are entitled to qualified immunity.1   Government
officials are entitled to qualified immunity when "their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have


     1
      We have held that for claims arising under the Rehabilitation
Act, public officials are entitled to qualified immunity from
liability unless they violated an employee's clearly established
rights under the Act and reasonably should have known they were
doing so. Lue v. Moore, 43 F.3d 1203, 1205 (8th Cir. 1994). We
have not had occasion to specifically determine whether public
officials are entitled to qualified immunity under the ADA.
Allison included one brief point contending that there is a
question of whether qualified immunity is available in the context
of this case.     In the same breath, however, she argued that
individual liability is implied because the doctrine of respondeat
superior applies under the Acts.

     At oral argument, Allison modified her argument, claiming for
the first time that the ADA does not provide a basis for individual
liability so there is no need for or purpose to be served by
applying qualified immunity in this context.         See Mason v.
Stallings, 82 F.3d 1007, 1009-1010 (11th Cir. 1996) (holding
qualified immunity was not designed for cases such as those arising
under the ADA because the ADA does not provide for individual
liability) (decided after oral arguments in Allison's case and not
submitted to this court by the parties).       The parties did not
thoroughly brief or argue this issue, and there is no indication
that Allison raised it before the district court. The thrust of
the arguments in this appeal concern whether the individual
defendants are entitled to qualified immunity, not whether the ADA
provides for individual liability. Hence, we decline to address,
and save for another day, the issue of whether the ADA provides for
individual liability. It is sufficient for this appeal to note
that Allison has clearly sued these defendants in their individual,
as well as official, capacities (Appellants' App. at 12); and if
individual liability is possible, then qualified immunity should be
an available defense for public officials in the ADA context, as it
is under the Rehabilitation Act.

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known."     Harlow, 457 U.S. at 818.    "[W]e must ask whether that law could
have been violated given the information available to the defendants at the
time."    Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995).       We make this
determination in view of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment, and where the
district court did not identify the particular conduct that it deemed
adequately supported, we view the facts in the light most favorable to the
nonmoving party.    Behrens, 116 S. Ct. at 842 (citing Johnson, 115 S. Ct.
at 2159).


     The clearly established law for this case stems from the ADA and the
Rehabilitation Act (the Acts).         Because the same basic standards and
definitions are used under both Acts, cases interpreting either are
applicable and interchangeable for purposes of our discussion.       See Wooten
v. Farmland Foods, 58 F.3d 382, 385 n.2 (8th Cir. 1995); Vande Zande v.
Wisconsin Dep't of Admin., 44 F.3d 538, 542 (7th Cir. 1995).        An employer
within the definition of each Act violates the Acts when that employer
discriminates on the basis of a disability by, among other things,
discharging an employee who is an otherwise "qualified individual with a
disability."    42 U.S.C. § 12112(a); 29 U.S.C. § 794(a).    The Acts and their
implementing regulations provide specifically that discrimination includes
an employer's act of not making "reasonable accommodations" for the known
limitations of an "otherwise qualified individual with a disability,"
unless such accommodation would impose an "undue hardship" on the business.
42 U.S.C § 12112(b)(5)(A).


     Allison claims she was dismissed from her job as a CO I "when she
advised her supervisors that she had physical limitations resulting from
a work-related spinal injury, had permanent medical restrictions from
involvement in inmate combat or conflict situations, and would need an
accommodation to be able to perform the essential functions of her
position."     (Appellee's Br. at 6.)       Allison requested the accommodation
that she be permanently placed




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in certain CO I posts, such as the guard tower or control center, where
physical control of inmates is not routinely required.               The Department
argued that the ability to restrain inmates is an essential function of all
CO I positions because the Department needs the flexibility to transfer CO
I's among different posts and because there always exists the potential for
an emergency situation where the Department would need all available CO I's
to aid in restraining inmates.    The district court concluded that there was
a genuine issue of material fact in dispute concerning whether inmate
control is an essential function of all CO I posts and whether the
Department could reasonably accommodate Allison's disability.


       In   its   qualified   immunity    determination,     the    district     court
specifically credited the following undisputed evidence:             The individual
defendants, high ranking employees of the Department of Corrections, were
aware of the ADA and the Rehabilitation Act and made definite policy
decisions regarding them.      Director Lombardi testified that for several
years the Department has had a policy to dismiss any CO I who is not
capable of performing 100 percent of the required duties of that job
classification.      All directors, including the individual defendants,
endorsed the policy.    The directors decided not to change the policy even
though they knew that in 1994, a jury had found in favor of a CO I who had
been   dismissed   after   attempting    to   return   to   work   with   a   physical
limitation.   Further, in 1992, the Missouri Human Rights Commission (MHRC)
twice ordered the Department of Corrections to stop discriminating against
individuals with disabilities in the employment context.


       Accepting these factual premises, we conclude that the individual
defendants acted reasonably in light of the clearly established law at the
time of Allison's termination in 1993.           The 1994 jury decision has no
bearing on the qualified immunity determination because it occurred after
Allison's employment was




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terminated.      The two 1992 MHRC orders to stop discriminating against
individuals with disabilities pertained to situations very different from
Allison's.     Unlike this case, neither of the incidents triggering MHRC's
orders involved an individual whose disability actually affected that
individual's ability to perform 100 percent of the duties required for the
classification of CO I.     Allison's disability, by express restriction from
her doctor, prohibited her from being involved in situations that might
require her to control or combat inmates.         Thus, the prior MHRC orders
would not give the individual defendants reason to believe that they must
accommodate an individual who is unable to restrain inmates.


      Furthermore, and most importantly, the clearly established law in
1993 did not indicate that it is a violation of the Acts to discharge a
correctional officer who is unable to physically restrain inmates.            To the
contrary, the Supreme Court had indicated that the Rehabilitation Act does
not require an employer to disregard the disabilities of handicapped
individuals.     See Southeastern Community College v. Davis, 442 U.S. 397,
405 (1979).     The Court explained that individuals must be qualified for the
job "in spite of" a disability, not "except for" the limitations of the
disability.      Id. at 406.      Applying this Supreme Court precedent, we
expressly stated in 1984 that an individual with a disability "may be
required to meet legitimate physical qualifications essential to the job."
Simon v. St. Louis County, Mo., 735 F.2d 1082, 1084 (8th Cir. 1984).


      In Simon, a police officer, who was a paraplegic due to an injury
sustained in the line of duty, brought an action under the Rehabilitation
Act   because    the   police   department   refused   to   reinstate   him    as   a
commissioned officer.     735 F.2d at 1083.    Simon was unable to satisfy all
of the physical requirements of a commissioned officer, partly because he
lacked the physical capability to effect a forceful arrest.             Id.   Simon
contended that




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there were positions in the police department where an officer would not
likely be called upon to make a forceful arrest.    Id. at 1084.   The police
department maintained that the requirement was reasonable and necessary to
ensure efficient police work.        Id.   After remanding for a specific
determination on this issue, we held that the district court did not
clearly err in finding that the forceful arrest requirement was necessary
to the job.     Id. at 1085.   Allison has cited no similar cases holding to
the contrary.


       The clearly established law of Simon is relevant to determining
whether the defendants acted reasonably at the time of Allison's discharge
(the issue in this limited qualified immunity appeal), but will control the
merits of this case only to the extent that similar fact-findings emerge
at trial.2    Nevertheless, absent any then-existing law to the contrary, the
individual defendants at the time of Allison's termination were free to
rely   on    the principles enunciated in Simon.      We conclude that the
individual defendants acted reasonably in light of the clearly established
law at the time by adhering to their policy that a CO I must be capable of
restraining an inmate, even while stationed in posts where inmate contact
is the exception.     Thus, the district court erred in concluding that the
individual defendants were not entitled to qualified immunity.




        2
        We note that the Missouri Court of Appeals has recently
determined as a matter of state law that "[i]t is essential that
the corrections officers be able to adequately perform the
defensive tactics in order to control inmates and suppress
disorders as well as to protect themselves and others." Stratton
v. Missouri Dep't of Corrections and Human Resources, 897 S.W.2d 1,
5 (Mo. Ct. App. 1995).       Because Stratton occurred after the
decision to terminate Allison was made, it may be relevant on the
trial of the merits of this case, but it does not figure into our
qualified immunity analysis.

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                                  III.


     Accordingly, we reverse the district court's denial of qualified
immunity to the individual defendants (Dora B. Schriro, George Lombardi,
and Mike Groose), and we remand for further proceedings consistent with
this opinion.


     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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