Daryle Raymond MCNELIS, Appellant v. PENNSYLVANIA POWER & LIGHT COMPANY
No. 16-3883
United States Court of Appeals, Third Circuit.
August 15, 2017
867 F.3d 411
Submitted Under Third Circuit L.A.R. 34.1(a), May 26, 2017
III. Conclusion
The correct outcome of our four-step transfer inquiry in this case is clear, as severance and transfer of only the claims against DePuy and Golden State satisfies Atlantic Marine‘s prescription that forum-selection clauses should be enforced “[i]n all but the most unusual cases,” Atl. Marine, 134 S.Ct. at 583, accounts for private and public interests relevant to non-contracting parties, see Jumara, 55 F.3d at 879-80, resolves the personal jurisdiction defect as to Golden State in New Jersey, see Howmedica I, 2015 WL 1780941, at *7-8 & n.11, and promotes efficient resolution of Howmedica‘s claims without unduly prejudicing non-contracting parties’ private interests, see supra Part II.C.3.b.iv. This outcome is therefore optimal for “the convenience of the parties and witnesses” and “in the interest of justice.”
Darren M. Creasy, A. James Johnston, Post & Schell, 1600 John F. Kennedy Boulevard, Four Penn Center, 13th Floor, Philadelphia, PA 19103, Counsel for Defendant-Appellee
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
OPINION OF THE COURT
HARDIMAN, Circuit Judge..
Daryle McNelis appeals the District Court‘s summary judgment in favor of his former employer, PPL Susquehanna, LLC.1 McNelis worked at PPL‘s nuclear power plant as an armed security officer from 2009 until he was fired in 2012 after failing a fitness for duty examination. McNelis sued, claiming his termination violated the Americans with Disabilities Act. The District Court disagreed, holding that McNelis was fired because he lacked a legally mandated job requirement, namely, the unrestricted security access authorization that the United States Nuclear Regu
I
This appeal requires us to analyze the relationship between the Americans with Disabilities Act (ADA) and the regulations promulgated by the Nuclear Regulatory Commission (NRC). We begin with the governing regulations and then turn to the facts of the case.
A
As the operator of a nuclear power reactor, PPL was required to comply with regulations issued by the NRC, two of which are seminal to this appeal.
First, PPL was required to implement a “fitness for duty program” to ensure that “individuals are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties.”
PPL also was required to maintain an “access authorization program” to monitor employees who had access to sensitive areas of the plant.
B
PPL hired Daryle McNelis as a Nuclear Security Officer in 2009. In that role, McNelis had unrestricted access to PPL‘s plant and was responsible for, among other things, protecting its vital areas and preventing radiological sabotage. McNelis carried a firearm (often an AR-15) and was authorized to use deadly force.
In April 2012, McNelis experienced personal and mental health problems. McNelis was paranoid about surveillance. He believed that various items in his home (such as his children‘s toy cars) were covert listening devices and he told his wife he would kill whoever was following him. McNelis also had problems with alcohol and his “use of alcohol [was] an issue of contention with his wife.” App. 32. Finally, a close friend and co-worker of McNelis named Kris Keefer believed McNelis had become obsessed with bath salts—a synthetic drug that affects the central nervous system. McNelis had admitted to using bath salts in the past and co-workers suspected he was doing so again.
In the midst of these troubles, McNelis‘s wife moved herself and the children out of the family home. That same day, local
Two days later, McNelis agreed to meet his wife at a psychiatric facility for treatment. The treating physician‘s initial evaluation noted that McNelis suffered from “paranoid thoughts, ... sleeplessness, [and] questionable auditory hallucinations.” App. 26-27. After a three day stay in the inpatient unit, McNelis was discharged with instructions to “[d]iscontinue or reduce the use of alcohol.” App. 28.
During the events of April 2012, McNelis‘s friend and co-worker Keefer became concerned by McNelis‘s behavior. As required by NRC regulations and PPL policy, Keefer reported his concerns to a supervisor, explaining that McNelis was “emotionally erratic[,] not sleeping well and having illusions” about surveillance. App. 20. Keefer also opined that McNelis‘s behavior warranted “immediate attention.” Id. Pursuant to NRC regulations, McNelis‘s unrestricted access was “placed on hold” pending medical clearance. App. 29.
McNelis then met with Dr. David Thompson—a third-party psychologist who performs fitness for duty examinations at approximately 20 nuclear facilities nationwide, including PPL‘s plant. Dr. Thompson interviewed McNelis and performed testing required by PPL policy and NRC regulations. See
Upon learning that McNelis had been deemed not fit for duty by Dr. Thompson, PPL revoked McNelis‘s unescorted access authorization and terminated his employment. After his internal appeal was denied, McNelis filed this suit. The District Court granted PPL summary judgment and McNelis timely appealed.
II
The District Court had jurisdiction under
III
McNelis claims his termination violated the ADA because “he was erroneously regarded as having a disability in the form of alcoholism, mental illness and/or illegal drug use, and that this misperception was a motivating factor in his firing.” McNelis Br. 26. To establish a prima facie case under the ADA, McNelis had to establish that he “(1) has a ‘disability,’ (2) is a ‘qualified individual,’ and (3) has suffered an adverse employment action because of that disability.” Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006). The parties contend, and we agree, that this case turns on the second prong:
“A two-part test is used to determine whether someone is a qualified individual with a disability.” Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998) (citation omitted). First, the individual must satisfy “the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.”
Whether or not McNelis could satisfy the first part of the analysis, we agree with PPL that McNelis could not perform the “essential functions” of his job. NRC regulations require Nuclear Security Officers to be fit for duty,
Although we are the first court of appeals to address the interplay between the ADA and these NRC regulations, our opinion is supported by a broad consensus among district courts that nuclear power plant employees who have lost security clearance or have been deemed not fit for duty are not qualified employees under the ADA. See Stevens v. S. Nuclear Operating Co., 209 F.Supp.3d 1372, 1379 (S.D. Ga. 2016) (“[B]ecause Plaintiff was determined not fit to return to work during the relevant time periods, she could not perform the essential functions of the job.“); Lute v. Dominion Nuclear Conn., Inc., 2015 WL 1456769, at *8 (D. Conn. Mar. 30, 2015) (“The Court finds that having [unrestricted access authorization] was essential to [the plaintiff‘s] job as a Plant Equipment Operator in a nuclear power facility, and without it, he was not ‘otherwise qualified’ to perform the essential functions of his job....“); Wetherbee v. S. Nuclear Operating Co., 2010 WL 11428172, at *7 (N.D. Ga. Mar. 17, 2010) (“[A]n essential job function of the [plaintiff‘s position at the NRC-regulated plant] is that the employee filling that position be determined to be fit for duty as required by the NRC....“); Sysko v. PPL Corp., 2009 WL 4725240, at *8 (M.D. Pa. Dec. 2, 2009) (“[A]n employee who is unable to maintain unescorted access status is not qualified to perform the essential functions of a position within the [NRC-regulated] nuclear facility.“); Mathieson v. Am. Elec. Power, 2002 U.S. Dist. LEXIS 6560, at *10 (W.D. Mich. Jan. 14, 2002) (“An employee‘s inability to satisfy [the NRC‘s] legally dictated fitness-for-duty program is ‘by its very nature an essential function.‘” (citation omitted)); McCoy v. Pa. Power and Light Co., 933 F.Supp. 438, 444 (M.D. Pa. 1996) (“[I]t is apparent as a matter of law that plaintiff is not a qualified individual with a disability within the meaning of the ADA, since his disability precludes him from retaining the security clearance necessary to perform his former job.“). These decisions are based on the well-settled proposition that “a legally-defined job qualification is by its very nature an essential function under [the ADA].” Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir. 1998).
We also find support in the opinions of our sister courts of appeals that have applied the same rationale in cases raising analogous ADA claims that implicate Department of Transportation (DOT) regulations. For example, in Hawkins v. Schwan‘s Home Service, Inc., the Tenth Circuit rejected an ADA claim brought by an employee who was fired for failing a DOT-mandated medical examination. 778 F.3d 877, 895 (10th Cir. 2015). The court
Finally, our holding is in accord with the Supreme Court‘s decision in Albertson‘s, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). In that case, the plaintiff was fired from his job as a truck driver after his incurable eye disorder prevented him from meeting DOT vision standards. Id. at 559, 119 S.Ct. 2162. In ruling on the plaintiff‘s ADA claim, the Court explained that the employer has an “unconditional obligation to follow the [DOT] regulations and [a] consequent right to do so,” and therefore could fire the plaintiff due to his vision issues. Id. at 570, 119 S.Ct. 2162. The Court found “crucial” to its holding the fact that Albertson‘s “was not insisting upon a job qualification merely of its own devising,” but was complying with a regulation that was concededly valid and “ha[d] the force of law.” Id. It deemed its holding consistent with the structure of the ADA because, “[w]hen Congress enacted the ADA, it recognized that federal safety rules would limit application of the ADA as a matter of law.” Id. at 573, 119 S.Ct. 2162.2
McNelis makes several counterarguments, none of which we find persuasive. First, he notes that a judgment in favor of PPL would diminish “the protections of the ADA for workers in sensitive positions within the nuclear industry.” McNelis Br. 29. Contrary to McNelis‘s characterization, this is a feature—not a bug—of the nuclear regulatory scheme. Presumably because of the sensitive nature of the work, the Nuclear Regulatory Commission made a policy judgment that for a limited number of jobs, nuclear power plants must screen employees for certain traits and behaviors that may endanger the public. See
Next, McNelis claims he should have been afforded “an opportunity to address the erroneous perception of Dr. Thompson and PPL.” Reply Br. 14. In fact, McNelis
To the extent McNelis argues he was entitled to more process than that delineated by the NRC regulations, he is again mistaken. While PPL had an “unconditional obligation to follow the regulations,” it also had a ”consequent right to do so.” Albertson‘s, 527 U.S. at 570, 119 S.Ct. 2162 (emphasis added). Although McNelis contends that PPL acted too “precipitously” in revoking his access authorization or should have provided him an opportunity to more “fully engage” in the review process, Reply Br. at 13, PPL was permitted to follow the NRC regulations that provided otherwise.
McNelis does not seriously dispute that PPL followed the procedures outlined in the NRC regulations,4 but argues that his termination was discriminatory because PPL typically does not fire employees before giving them a chance to regain access. But “the fact that certain accommodations may have been offered ... to some employees as a matter of good faith does not mean that they must be extended to [each employee] as a matter of law.” Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995). This is true even though PPL policy generally allows individuals to comply with treatment recommendations before termination. See Smith v. Midland Brake, Inc., 138 F.3d 1304, 1310 (10th Cir. 1998) (“Absent proof of discrimination as defined by the ADA, an employer‘s failure to follow its own internal policies does not in itself constitute a violation of the ADA.“), rev‘d on other grounds, 180 F.3d 1154 (10th Cir. 1999) (en banc).
Finally, McNelis asserts that a jury could have deemed Dr. Thompson‘s fitness determination erroneous. In essence, McNelis claims PPL was not entitled to rely on Dr. Thompson‘s determination that he was not fit for duty in light of other evidence he submitted from his personal doctors. We disagree. The Supreme Court has indicated that in the ADA context, a court should not “second-guess” a physician‘s determination that an employee failed to meet the regulatory requirements of his job. Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 522, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999). This is doubly true in the circumstances of this case, because NRC regulations prohibited PPL from questioning the determination of fitness after it was made by Dr. Thompson.
* * *
For the reasons stated, we will affirm the judgment of the District Court.