UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES W. CHAMP,
Plaintiff-Appellant,

v.

BALTIMORE COUNTY, MARYLAND;
ROGER B. HAYDEN, In his official
capacity; CORNELIUS J. BEHAN, In his
official capacity as past Chief of
Police,                                                        No. 95-2061
Defendants-Appellees,

and

BALTIMORE COUNTY POLICE
DEPARTMENT; MICHAEL D. GAMBRILL,
In his official capacity as Chief of
Police,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CA-93-4031-HAR)

Argued: May 9, 1996

Decided: July 10, 1996

Before RUSSELL, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Lee David Hoshall, Baltimore, Maryland, for Appellant.
Gregory Edward Gaskins, BALTIMORE COUNTY OFFICE OF
LAW, Towson, Maryland, for Appellees. ON BRIEF: Michael L.
Foreman, KAPLAN, HEYMAN, GREENBERG, ENGELMAN &
BELGRAD, P.A., Baltimore, Maryland, for Appellant. Virginia H.
Barnhart, County Attorney, Michael A. Fry, Assistant County Attor-
ney, John E. Beverungen, Assistant County Attorney, BALTIMORE
COUNTY OFFICE OF LAW, Towson, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

James W. Champ appeals the district court's decision denying his
motion for summary judgment and granting summary judgment in
favor of Baltimore County, Maryland, County Executive Roger B.
Hayden and Chief of Police Cornelius J. Behan (collectively, the "Po-
lice Department"). Champ claimed that the Police Department unlaw-
fully discriminated against him by placing him on disability
retirement because he lost the use of his upper left arm in violation
of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101,
et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq..
He also brought a claim under 42 U.S.C. § 1983.1 The district court
found that Champ, unable to perform the essential functions of a
police officer, was not an "otherwise qualified" individual with a dis-
ability entitled to protection under the ADA or the Rehabilitation Act,
and therefore dismissed his discrimination claim. We affirm.
_________________________________________________________________
1 Champ does not appeal the district court's dismissal of his § 1983
claim. We therefore consider it waived for purposes of appellate review.
See Cades v. H&R Block, Inc., 43 F.3d 869, 876 (4th Cir. 1994).

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I.

Champ suffered an off-duty injury in July 1976 that rendered his
upper left arm completely useless. Upon returning to work in Decem-
ber that same year, Champ was assigned to various light-duty posi-
tions because of his condition.

The Baltimore County Code and the Baltimore County Police
Department regulations limited the Police department to assigning
injured officers to light duty for a maximum of 251 days. Nonethe-
less, for sixteen years following his injury, Champ performed light-
duty assignments. Thus, the Police Department employed him for
much longer than allowed.

In 1992, then Chief of Police Behan determined that budgetary
constraints mandated the removal of those officers who could not per-
form the full duties of a police officer. All officers who had remained
on light-duty assignment in excess of 251 days were placed on either
medical retirement or service retirement, were transferred into other
positions with the County, or they took leaves of absence or resigned.
Champ was placed on disability retirement.

Champ's suit alleged, inter alia, that the Police Department forced
him into disability retirement because of his disability in violation of
the ADA, and the Rehabilitation Act.

II.

To establish a violation of the ADA or Rehabilitation Act arising
from his placement on disability, Champ was required to show that
he was disabled; that he was otherwise qualified for the job; and that
the Police Department placed him on disability retirement due to dis-
crimination solely based on his disability. Doe v. University of Mary-
land Medical Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995); Tyndall
v. National Education Ctrs., 31 F.3d 209, 212 (4th Cir. 1994).
Although Champ clearly showed that he was disabled, the district
court found that he had not established a prima facie case of violation
of the ADA or Rehabilitation Act because he failed to prove that he
was "otherwise qualified" for the job in question.

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To be "otherwise qualified" within the meaning of the ADA,
Champ had to meet all of the Police Department's job requirements,
with or without accommodation, in spite of his disability. 42 U.S.C.
§ 12111(8); Southeastern Community College v. Davis, 442 U.S. 397,
406 (1979). Thus, the district court must consider whether Champ
could perform the essential functions of his job without accommoda-
tion; and, if he could not, whether any reasonable accommodations by
the Police Department would enable him to perform these functions.
Tyndall, 31 F.3d at 213.

The district court first considered whether Champ could perform
the essential functions of his job without any reasonable accommoda-
tion. After thoroughly considering all of the evidence before it, the
district court found that the Police Department considered the essen-
tial functions of a police officer to be the ability to make forcible
arrests, to drive vehicles under emergency conditions, and to qualify
with a weapon. The district court further found that Champ offered
no evidence disputing the Police Department's conclusions that
Champ could not perform these duties in spite of his disability.

The district court also considered whether Champ would be able to
perform the essential functions of a police officer if the Police Depart-
ment "reasonably accommodated" his disability. Under both the ADA
and Rehabilitation Act, an employer is required to make reasonable
accommodation to the known physical or mental limitations of a qual-
ified disabled individual unless the accommodation would impose an
undue hardship on the operation of the business. 42 U.S.C.
§ 12112(5)(A); School Board of Nassau County v. Arline, 480 U.S.
273, 289 n.17 (1987).

The ADA defines accommodations to include "job restructuring"
and "reassignment to a vacant position." 42 U.S.C. § 12111(9)(B).
Champ bore the burden of establishing his ability to perform the
essential functions of an officer with any reasonable accommodation.
Tyndall, 31 F.3d at 213. An accommodation, however, is unreason-
able if it requires elimination of an essential duty. Hall v. U.S. Postal
Service, 857 F.2d 1073, 1078 (6th Cir. 1988). Champ argued that
reassignment to another light-duty position would have reasonably
accommodated him. The district court found, however, that all police
officers, regardless of their position, were required to be able to per-

                     4
form the three essential duties of an officer because all patrol and
non-patrol officers were subject to reassignment at any time. Further-
more, non-patrol officers performing light duty were often pulled
from their light duties to assist in emergencies. Therefore, despite
Champ's performing his light-duty jobs efficiently, the district court
found that reassigning Champ to light duty would not constitute a rea-
sonable accommodation because Champ was still incapable of per-
forming the essential duties of a police officer. Even while on light
duty assignment, Champ could never assist in emergencies or be reas-
signed to any full-duty position. Thus, the district court concluded
that no genuine issue of fact existed as to Champ's allegation that
even with an accommodation he could perform the essential functions
of a police officer.

The district court also noted that light-duty positions were needed
to accommodate the temporary assignment of disabled officers and
those officers under disciplinary investigation. Therefore, the district
court found that the Police Department did no wrong in finally
enforcing its regulation of assigning injured officers to a maximum
251 days of light-duty.

In sum, the district court concluded that Champ failed to establish
a prima facie case of discrimination in violation of the ADA or the
Rehabilitation Act because Champ was not an "otherwise qualified"
individual within the meaning of the Acts.

After carefully reviewing the record, reading the briefs, hearing
oral argument, and giving full consideration to the parties' conten-
tions, we affirm the judgment below of the district court, James W.
Champ v. Baltimore County, Md., 884 F. Supp. 991 (D.C. Md. 1995).2

AFFIRMED
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2 We grant appellant's motion to strike materials in appellee's brief that
were not part of the district court record. That information has not been
considered in our disposition of this appeal.




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