UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CASEY Q. BURKE,
Plaintiff-Appellant,

v.

COMMONWEALTH OF VIRGINIA;
                                                                  No. 96-1709
COMMONWEALTH OF VIRGINIA
DEPARTMENT OF CORRECTIONS; PAUL
BROUGHTON; LONNIE M. SAUNDERS,
Warden; THOMAS R. PARK,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-95-934)

Argued: April 10, 1997

Decided: June 6, 1997

Before HALL and NIEMEYER, Circuit Judges, and
DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Terry William Raney, Richmond, Virginia, for Appellant.
Guy Winston Horsley, Jr., Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellees. ON BRIEF: James S. Gilmore, III, Attorney General of
Virginia, Catherine C. Hammond, Deputy Attorney General, Neil
A.G. McPhie, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Casey Q. Burke sued the Commonwealth of Virginia and its
employees under the Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. § 12101 et seq ., alleging that the defendants dis-
criminated against him in testing and training him to be a correctional
officer. Burke claims that the defendants failed to make reasonable
accommodation for his "attention deficit hyperactivity disorder" and
"developmental expressive and receptive language disorder." He also
claims that defendants retaliated against him for filing a discrimina-
tion claim with the EEOC. The district court entered summary judg-
ment in favor of the defendants, and Burke appealed. We affirm.

In January 1993, after Virginia's Augusta Correctional Center
hired Burke as a correctional officer, it sent him to the Department of
Corrections Training Academy where he was required to earn passing
grades in order to be certified as a correctional officer. The training
coordinator at the academy informed the Augusta Correctional Cen-
ter's warden, however, that Burke failed to obtain the minimum pass-
ing score on his mid-term examination. Although Burke was given a
second and a third chance to pass the examination in one-on-one
administrations, he failed both times. After having failed the test a
total of three times, Burke informed the training officers that he had
mild dyslexia.

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The Training Academy referred Burke to the Center for Learning
Potential "to determine if [he] has any learning disabilities which
should be accommodated during the testing situation," and Burke was
provisionally diagnosed with "attention deficit hyperactivity disorder"
and "developmental expressive and receptive language disorder." In
his report, the evaluating psychologist repeatedly noted that Burke
lacked the ability to process or remember aurally received informa-
tion. The evaluator also noted that Burke's reading skills were "signif-
icantly weak," and concluded, "[a]lthough[Burke] is expressing an
interest in being a correctional officer, the results from his interest
inventory, as well as his cognitive skills and abilities are not consis-
tent with this occupational area."

The Department of Corrections thereafter informed Burke that it
had received Burke's evaluations and that it did not believe that the
Department of Corrections could accommodate him in any way that
would allow him to become a certified correctional officer. Specifi-
cally, the Department of Corrections stated,

          [Y]our inability to read, respond, remember, and follow
          instructions are verified by the evaluation. These are essen-
          tial requirements of a Corrections Officer in the everyday
          supervision of inmates and the reading and following of post
          orders.

Nonetheless, the Department of Corrections offered Burke the posi-
tion of motor vehicle operator at another facility at the same salary
paid to correctional officers. Burke rejected that offer because the
travel distance to work would have been too great. The Department
of Corrections then offered Burke the position of store clerk at the
Augusta Correctional Center, which he accepted. After almost a year
at that position, however, Burke quit.

The ADA provides in relevant part that "no qualified individual
with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities or a public entity, or be subjected to discrimination by any
such entity." 42 U.S.C. § 12132 (emphasis added). The term "quali-
fied individual with a disability" is defined by the Act to mean "an
individual with a disability who, with or without reasonable accom-

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modation, can perform the essential functions of the employment
position that such individual holds or desires." 42 U.S.C. § 12111(8).

The official job description for the position of correctional officer
requires that the employee be able to "communicate both orally and
in writing and read and interpret written material." It also requires that
upon completion of training, the employee demonstrate an "ability to
apply and interpret laws, rules and regulations, conduct thorough
searches and investigations; recognize problems for report to higher
supervisory level; provide leadership and work direction to inmates;
and to use good judgment in the use of lethal force." According to the
psychological evaluation of Burke, his "auditory skills are inadequate
for learning"; he "has difficulty retaining information learned orally";
and he was limited to circumstances where "verbal instruction" was
not necessary. Thus, according to the job description, which is not
disputed by any other evidence in this case, Burke is not qualified
regardless of any accommodation that can be hypothesized. Indeed,
the psychologist at the Center for Learning Potential found that
Burke's "cognitive skills and abilities are not consistent with this
occupational area." And that finding is not controverted. Accordingly,
Burke has failed to state a claim under the ADA.

Notwithstanding Burke's inability to demonstrate that he is pro-
tected by the ADA for a correctional officer's position, Virginia pro-
vided Burke with other suitable positions, the second of which he
accepted. He makes no allegation that his departure from this clerk's
position was in any way prompted by acts of discrimination.

In his complaint Burke also alleges that Virginia retaliated against
him because he filed a discrimination claim with the EEOC. It is
undisputed, however, that Virginia rejected him from the position of
correctional officer before he engaged in the protective activity of
asserting any rights under the ADA. The only conceivably retaliatory
action which Burke alleged was failure to hire him for the position of
boiler operator. All the evidence in this regard, however, indicates
that he was not hired because he was unqualified.

For the foregoing reasons, we affirm the judgment of the district
court.

AFFIRMED

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