ADA Does Not Require Day Shift Assignment For Trooper

Jesse Kirincich was a trooper with the Illinois State Police (ISP). Kirincich has suffered from Type 1 diabetes since she was a child. In August 2011, the Illinois State Police hired Kirincich. It was aware of Kirincich’s diabetes before hiring her.

At the time of her hiring, Kirincich’s diabetes appeared to be well controlled. For 13 years, an endocrinologist named Dr. Yohay has treated her, using a program that aimed to maintain her blood sugar levels and reduce the risk of diabetic complications. In the time after ISP hired her, however, Kirincich experienced at least two hypoglycemic episodes in which her blood sugar got so low that she lost consciousness.

On February 28, 2013, Kirincich suffered a hypoglycemic episode while on patrol. This caused her to lose consciousness and drive erratically for several miles. She ran a red light, drove over the dotted center line, and collided with several other vehicles at a high rate of speed. Ultimately, her vehicle stopped as a result of the collisions, and firefighters cut the roof off of her squad car to extricate her. She was taken to the hospital by ambulance. Kirincich had little memory of the hypoglycemic episode.

ISP placed Kirincich on restricted status in order to evaluate her ability to continue working as a state trooper. A medical review board considered Kirincich’s case history of the on-duty hypoglycemic episode (and an off-duty hypoglycemic episode from December 2012), the dash cam video from the collision, and Kirincich’s own testimony.

The Patrol determined that Kirincich could no longer perform the essential functions of her position. The Patrol began the process of finding an accommodation, including notifying Kirincich she could apply for a reassignment to a civilian position.

Instead, Kirincich requested a day shift assignment, explaining that the “night shift causes her blood sugar levels to become unstable and lead to complications for her diabetes.” A doctor backed up Kirincich’s statement that work at night had an impact on her blood sugar levels.

Eventually, Kirincich rejected all non-sworn assignments, even one that offered her a salary considerably higher than that she was receiving in her state trooper position. The Patrol treated her decision as a resignation, and she responded by filing a lawsuit under the Americans With Disabilities Act.

A federal court rejected the lawsuit. The Court recited that “the Patrol contends that one of the essential functions of a state trooper is being available 24 hours a day, seven days a week for emergency call-ups in the case of arrests, state emergencies, or civil disturbances. Kirincich does not dispute the 24-hour availability requirement – though she does take issue with some of the categories of work for which a trooper might be called in. By failing to contest anything other than those details, Kirincich effectively admits that a trooper must be available at all times as an essential function of the job.

“Even though Kirincich could not perform the essential functions of a state trooper, ISP was required to engage in an interactive process to determine if there was an accommodation that would allow her to continue working for the agency. Kirincich argues that the accommodations ISP offered were unreasonable because they were unsworn positions that constituted demotions. She also contends that the proposed accommodations were unreasonable because ISP required her to sign a resignation form before transferring her to a new position. It appears that Kirincich contends that the only reasonable accommodation would have been one that allowed her to keep her trooper status and duties.

“A refusal to grant a particular accommodation does not automatically subject an employer to liability. An employer flunks its obligation under the ADA when, in the face of a shift transfer request, it refuses to grant the request and then does nothing to engage in finding alternative accommodations. Kirincich contends that the Patrol should have found a way to accommodate her while allowing her to remain a trooper. The ADA, however, does not require this.

“Finally, the Patrol argues that even if Kirincich had been qualified – that is, even if she could have performed the essential functions of the position with a reasonable accommodation of a shift change – the shift change she requested would have been unavailable to her because it had in place an established system whereby employees bid on their top shift choices, and such preferences are assigned according to seniority. All that the law requires the Patrol to do is present evidence demonstrating that it employed a seniority system and that system’s rules. Because the Patrol has presented evidence demonstrating that it had a seniority system in place for shift transfers that doled them out based on seniority, it has met its burden.”

Kirincich v. Illinois State Police, 2016 WL 3958882 (N.D. Ill. 2016).