David A. ATKINS, Plaintiff-Appellant v. Ken SALAZAR, Secretary, Department of the Interior, Defendant-Appellee.
No. 10-60940.
United States Court of Appeals, Fifth Circuit.
Dec. 12, 2011.*
* Redesignated as Opinion and Publication Ordered, see 2011 WL 7704346.
385
Here, a jury found that Graham and Davis fraudulently induced O‘Hare and Stewart to enter a settlement agreement. Graham and Davis complain that the evidence of fraud was insufficient to support the jury‘s verdict, that the jury was not properly instructed, that the jury‘s award of exemplary damages was improper, and that the district court erred in entering judgment without an election of remedies.
We have rejected each of these arguments, except one. Because the jury‘s findings do not support an uncapped award of exemplary damages, we reverse the judgment as to the award of exemplary damages, and remand for the district court to amend the judgment reducing the exemplary damages award to $3,924,000. Otherwise, we affirm the judgment. The district court‘s judgment is
AFFIRMED in part and REVERSED in part, and the case is REMANDED for entry of an amended judgment.
John Wallace Griffin, Jr., Marek, Griffin & Knaupp, Robert Edward McKnight, Jr., Esq., Law Office of Robert E. McKnight, Jr., Victoria, TX, Jim D. Waide, III, Esq., Waide & Associates, P.A., Tupelo, MS, for Plaintiff-Appellant.
Ava Nicola Jackson, Esq., Feleica Lockhart Wilson, Esq., Assistant U.S. Attorneys, U.S. Attorney‘s Office, Oxford, MS, for Defendant-Appellee.
Before KING, GARZA, and GRAVES, Circuit Judges.
Plaintiff-Appellant David Atkins, a law enforcement park ranger, was transferred to a staff ranger position based on the conclusion of a medical review board constituted by the National Park Service (an agency of the Department of the Interior) that his uncontrolled diabetes could prevent him from safely performing his duties. Atkins filed suit under the Rehabilitation Act, claiming that his transfer amounted to discrimination on the basis of his alleged disability. The litigation focused on Atkins‘s challenge to the Department of the Interior‘s affirmative defense that Atkins‘s transfer was job-related and consistent with business necessity. The district court granted summary judgment for the Department of the Interior, and Atkins appeals. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Atkins‘s Transfer
In 1984, Plaintiff-Appellant David Atkins (“Atkins“) began employment at the National Park Service (“NPS“), an agency of the Department of the Interior (“Interior“), as a law enforcement park ranger (“park ranger“). Atkins was diagnosed with Type 1 diabetes in 1986.
In March 1999, Interior promulgated new medical qualification standards (the “Standards“) for park rangers. The Standards were created pursuant to
(a) Established by written directive and uniformly applied,
(b) Directly related to the actual requirements of the position.”
Id.
Agencies are, therefore, “authorize[d] to establish physical requirements for individual positions ... when such requirements are considered essential for successful job performance. The requirements must be clearly supported by the actual duties of the position.”
Following the directives of
The Standards themselves cover a range of physiological requirements and include a nonexhaustive list of “medical conditions and/or physical impairments that may be disqualifying.” The Standards specifically provide that “[i]ndividual assessments will be made on a case-by-case basis to determine an individual‘s ability to meet the performance related requirements covered by these standards.” The relevant Standard for the instant case is the “Endocrine and Metabolic Systems Standard,” which deals with “excess[es] or deficienc[ies] in hormonal production [that] can produce metabolic disturbances affecting weight, stress adaptation, energy production, and a variety of symptoms or pathology such as elevated blood pressure, weakness, fatigue[,] and collapse.” Under this Standard, “[a]ny condition affecting normal hormonal/metabolic functioning and response that is likely to adversely affect safe and efficient job performance is generally disqualifying.” Among the listed “conditions which may result in disqualification” is “insulin dependent diabetes mellitus,” which Atkins has.
Pursuant to this Standard, a medical review of Atkins was conducted on June 27, 2000. Following the review, on July 29, 2000, Atkins was found not to be medically qualified to serve as a park ranger due to his poor vision, his history of asthma, and his diabetic condition.3 Atkins appealed this decision, and on July 31, 2002, NPS‘s Medical Review Board (“MRB“) granted him a medical waiver, since his “diabetic condition ... [was] becoming well controlled.” The waiver, however, also established several “reasonable accommodations” that Atkins would have to meet, including HA1C testing4 at intervals recommended by Atkins‘s physician, more frequent blood testing while on duty, an exercise program, and the use of an insulin pump. A subsequent 2003 medical review found that Atkins was still not medically fit for his job due to his poor eyesight and diabetes, but the MRB granted him a second waiver on June 30, 2003, subject to approximately the same conditions as the first waiver. Atkins was medically reviewed again in 2005 and was found once again not to be medically qualified to serve as a park ranger and was placed on light duty status.5
In placing Atkins on light duty, the MRB explained to Atkins that he was not in compliance with the requirements of his previous waiver. In particular, the MRB observed, the examining physician had reported that Atkins‘s most recent HA1C test showed an elevated level of 9.4%, meaning that Atkins‘s diabetes did not “appear to be well controlled.” The MRB further observed that Atkins was also at risk for hypoglycemia, which is a state of lowered glucose levels that is capable of “affect[ing] attention, concentration, think
Atkins appeared before the MRB to appeal the denial of his waiver. While the MRB recognized that Atkins had performed his duties without incident, one MRB member summarized NPS‘s concerns as follows:
[T]he absence of documented real-life situations regarding low blood-sugar levels does not minimize safety risks and certainly doesn‘t minimize the concerns that the [NPS] has with regards to your ability to perform the full range of law enforcement duties safely and efficiently.... [T]he question is whether or not [your blood-sugar fluctuations are] prima facie evidence that your condition is not static and stabilized. And right now, if you look at our regulations, your conditions, your condition is not static or stabilized.
Atkins admitted, in response, that the nature of his work prevented him from eating regularly or healthily: “[U]nfortunately doing what a lot of law-enforcement people do ... our diet‘s not exactly the greatest thing in the world, because if you‘re on patrol and you‘re the only one working, you can‘t exactly go someplace and have a decent meal. So you run through a fast-food place.”
The MRB‘s physician remarked that Atkins‘s blood sugar fluctuated wildly: “[B]etween March 14th and April 13, there were seven [on-the-job] episodes where your blood sugar was below 50[mg/dl]”7 in that just about one-month period, seven times.... The mid morning [reading] varies from 40[mg/dl] to 232[mg/dl]. I‘ll just read some of them: 132, 105, 232, 142, 84, 204, 40, 124, 77. That‘s a lot of variability in a short span of time.” Another MRB member noted that “[t]here has to be some point in time when those low blood-sugar levels become fewer and fewer.”
Of particular concern to the MRB was that Atkins might be unable to feel when his blood-glucose levels were perilously low:
MR. ATKINS: Well, yeah, you can feel your system. I mean, like I said, you start to get a little shaking, you‘ll start to maybe just feel—I don‘t know how to explain it all together.
DR. SALADINO: Did you know that sometimes diabetics lose that feeling after 20 years? They stop feeling the lows until they get like very low?
...
DR. SALADINO: That‘s what I‘m worried about, that maybe you‘re not feeling these lows. Feeling twitchy; I don‘t know.
The MRB‘s concern was clear: Atkins might not sense the onset of an incapacitating hypoglycemic event and, therefore, fail to take appropriate action. As the MRB explained, in such an event, the risks to the public, other NPS employees, and Atkins himself could be serious:
One of the concerns [that NPS has with diabetic law enforcement park rangers] is that you‘ve got to be able to react and respond appropriately in time-sensitive situations, and it requires the ability to use good judgment. Even though you‘ve got rescue meds, always remember that there is a lag time between the time you take your particular rescue medication and the time for that to act on your system. So in essence, if there was a critical situation that required your involvement and you had low blood-sugar and you took a candy bar, it really wouldn‘t be of any value. You‘d pretty much be incapacitated if there was a significant issue.
Following this hearing, on August 12, 2005, the MRB informed Atkins that he would not be granted a third waiver.8 The MRB based its decision on several factors:
- That Atkins‘s “diabetic condition ... [wa]s not well controlled.”
- That Atkins “had several incidents of hypoglycemia,” including seven episodes from March 14, 2005, to April 13, 2005, and eleven episodes from January 22, 2005, to February 21, 2005.
- That despite close monitoring by his personal physician and the use of an insulin pump, Atkins‘s “diabetes [was] not static and stable as outlined in
5 CFR [Part] 339 , Medical Qualification Determinations.”9 - That Atkins “ha[d] not been diligent in monitoring [his] blood sugar levels ... as required by [his] initial waiver.”
- That Atkins‘s “blood sugar fluctuations [were] largely due to [his] failure to maintain a proper diet and nutrition as required to control [his] diabetes,” and that while “[Atkins‘s personal physician had] hoped to
stabilize [his HA1C levels at] ‘the American Diabetes Association recommended goal for this value [of] less than or equal to 7.0[%] and th[at this] w[ould] be [her] personal goal for [Atkins‘s] level of control,‘” “most of [Atkins‘s HA1C] levels ha[d] consistently remained above 8.0[%] and as high as 10.2[%], which demonstrate[d] [that Atkins] ha[d] not controlled [his] diabetes.”10 - That Atkins had failed to submit exercise logs as required by his initial waiver.
- That Atkins “ha[d] not provided documentation on a quarterly basis ... that [his] diabetic condition [was] continuing to be controlled through use of the insulin pump on a quarterly basis as required by [his] initial waiver.”
Following the MRB‘s determination, NPS revoked Atkins‘s law enforcement commission on September 6, 2005, and on March 20, 2006, offered him a staff ranger position (a non-law enforcement position) at the same pay grade and duty location. Atkins accepted that offer and continues to hold this position today.
Atkins filed a discrimination complaint challenging his transfer to staff ranger with Interior‘s Equal Employment Office on October 18, 2005, alleging that the NPS wrongly removed him from his position because he was an insulin dependant diabetic. Following a hearing, the Administrative Law Judge decided that Atkins had not been discriminated against, and on July 2, 2007, Interior issued a Final Agency Decision affirming the Administrative Law Judge‘s findings. Atkins v. Kempthorne, 353 Fed.Appx. 934, 935-36 (5th Cir. 2009). Atkins appealed Interior‘s decision to the Equal Employment Opportunity Commission on August 6, 2007. After initially failing to properly exhaust his administrative remedies, see id. at 936, Atkins later properly filed a discrimination suit against Interior, in the District Court for the Northern District of Mississippi on February 22, 2010. This is the case we consider.
B. The Present Case
Atkins sued Interior under the Rehabilitation Act,
Among the various kinds of discrimination prohibited under the ADA is using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.
Atkins contended that his diabetes is a disability that “substantially limits his major life activities of eating, caring for himself[,] and metabolizing food.” However, despite his disability, Atkins alleged that he is a “qualified person with a disability and has met all of the requirements of a law enforcement ranger.” “NPS disqualified [him] because of a medical qualification standard that it used to declare Atkins‘s diabetes ‘uncontrolled’ and inconsistent with his law enforcement duties,” and therefore his demotion was prohibited discrimination.
Atkins made two related claims in this regard. First, Atkins alleged that Interior‘s revocation of his law enforcement commission because of his diabetes was improper because it was “done without substantial evidence or any evidence whatsoever that would show that [Atkins] could not [meet] his essential duties [as a park ranger].” In other words, Atkins argued that Interior demoted him because “[Atkins] has diabetes and [Interior] acted on stereotype and speculation instead of [Atkins]‘s abilities,” an impermissible form of discrimination. Second, Atkins alleged that Interior “regarded [Atkins] as having a disability which substantially limits life activities ... [and] incorrectly assumed that with diabetes it was impossible for [Atkins] to perform the essential functions of a law enforcement ranger with or without reasonable accommodation.” Put differently, Interior inaccurately “perceived [Atkins‘s] diabetes as being uncontrolled and a direct threat to himself or others,” due to a “qualification standard that screens out those with diabetes regardless of how qualified they are to perform the job [in question].”
In response to Atkins‘s complaint, Interior filed a pre-answer motion to dismiss or for summary judgment, in the alternative, with several attached documents. Interior made several counter-arguments. First, Interior argued that Atkins was not disabled because he “does not have an impairment that affects a major life activity such as performing manual tasks, walking, seeing, hearing, [etc.]....” Second, Interior contended that Atkins was not perceived as disabled by NPS since “none of his supervisors regard[ed] him as disabled.” Third, Interior asserted that Interior “provided legitimate[,] nondiscriminatory reasons for its actions ... [that Atkins] cannot show ... are pretext.” Namely, NPS had a “legitimate, nondiscriminatory” interest in “the safety of the public and its workers.”13
Interior responded to Atkins‘s arguments by directly stating that Atkins was a “direct threat to himself, fellow officers, and the public.” After Interior submitted this brief, Atkins requested leave to file a sur-reply since “[Interior] ha[d] improperly raised in [its] reply brief a significant new basis for summary judgment against [Atkins]: the affirmative defense that the adverse action against [Atkins] was based on Atkin‘s being a direct threat to himself, his co-workers and the public.” The motion was granted and both Atkins and Interior exchanged further briefs which dealt with the direct threat defense and the business necessity defense to a lesser extent.
After both sides submitted these various briefs, the district court went on to consider Interior‘s original motion to dismiss and its attached exhibits. Following
The district court then turned to the question of whether the NPS guidelines were “a qualification standard that screens out or tends to screen out disabled persons,” noting that the ADA, and therefore the Rehabilitation Act, affords “employer[s] an affirmative business-necessity defense to claims challenging the application of an otherwise problematic standard.” Id. at *5. Reviewing the evidence, the district court found that “[the NPS medical] standard [under which Atkins was demoted] was not created arbitrarily, but rather was based upon evidence of a safety risk posed by hypoglycemia in insulin dependent diabetics, a risk which prevents the effective functioning of a law enforcement Park Ranger.” Id. at *7. The district court then granted summary judgment for Interior on the business necessity defense, concluding that NPS‘s “Medical Standards medically disqualifying those with uncontrolled insulin-dependent diabe
Atkins appeals the district court‘s grant of summary judgment to Interior on two bases. First, Atkins argues that the district court‘s grant of summary judgment for Interior sua sponte was improper because it was based on the business necessity defense that, Atkins claims, Interior failed to present evidence on or arguments for in its motion for summary judgment. Atkins argues that the district court failed to notify the parties of its decision to rely on that defense. Second, Atkins contends that Interior‘s evidence in support of its motion does not support granting summary judgment on the business necessity defense.
II. DISCUSSION
We review grants of summary judgment de novo. Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010) (citing LeMaire v. La. Dept. of Transp. & Dev., 480 F.3d 383, 386 (5th Cir. 2007)). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
“[D]istrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). We review for harmless error a district court‘s improper entry of summary judgment sua sponte without notice. O‘Hara v. Gen. Motors Corp., 508 F.3d 753, 764 (5th Cir. 2007); see also Washington v. Resolution Trust Corp., 68 F.3d 935 (5th Cir. 1995). A district court‘s grant of summary judgment sua sponte is “considered harmless if the nonmovant has no additional evidence or if all of the nonmovant‘s additional evidence is reviewed by the appellate court and none of the evidence presents a genuine issue of material fact.” Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1398 (5th Cir. 1994) (emphasis omitted). Consequently, even if the district court wrongly granted summary judgment to Interior—that is, without notice on a basis not argued by Interior—such error may be harmless if the record is adequately developed to support a summary judgment decision.
A. The District Court‘s Grant of Summary Judgment Sua Sponte
We first address Atkins‘s conten
Atkins‘s basic argument against the district court‘s grant of summary judgment sua sponte is that Interior never argued the business necessity defense in its initial briefing in support of summary judgment. Rather, Atkins contends, Interior argued that Atkins‘s inability to meet the NPS‘s medical standards was a legitimate, nondiscriminatory reason for his dismissal under the burden-shifting standard of McDonnell Douglas. As Atkins argued in his response to Interior‘s motion for summary judgment, when “the evidence establishes that an employer openly discriminates against an individual it is not necessary to apply the mechanical formula of McDonnell Douglas to establish an inference of discrimination.” Rizzo, 84 F.3d at 762 (quoting Moore v. U.S.D.A., 55 F.3d 991, 995 (5th Cir. 1995)); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.“).17 Since Interi
Atkins‘s argument is unavailing. First, while Interior recognizes on appeal that it failed to raise the affirmative defense of business necessity in its opening brief, Atkins himself raised the business necessity defense in his summary judgment response brief:
[T]he defendant‘s adoption of a diabetes qualification standard was not a business decision entitled to the Court‘s deference subject to Atkins‘s McDonnell Douglas proof that the standards were a pretext for discrimination. On the contrary, whenever a qualification standard screens out people who are or tend to have a disability, the plain language of the ADA requires the defendant (if it seeks to avoid liability) to plead and prove, as an affirmative defense, that its qualification standard was job-related and consistent with business necessity.
In that brief, Atkins further explained that “Interior ha[d] not presented and argued any evidence relevant to the ... issues of job relatedness and business necessity.” Atkins went on to discuss the business necessity defense for several pages. He concluded that if “NPS chooses to defend this case on the basis of business necessity it has the burden of proceeding with evidence, not Atkins.” All this suggests that Atkins was aware of the business necessity defense and argued against it despite Interior‘s failure to raise the defense in its opening brief.
Moreover, Interior made repeated reference to facts relevant to the business necessity defense in its opening brief. For example, Interior explained that NPS‘s “legitimate, nondiscriminatory reason” for requiring medical standards and demoting Atkins “is the safety of the public and its workers. By its very nature, law enforcement work is unpredictable and sometimes dangerous. Any condition that can quickly render a law enforcement officer confused or unconscious puts that officer, fellow officers, and the public in danger.” Interior further argued that because “[Atkins]‘s uncontrolled diabetes [could] affect attention, concentration, thinking, judgment, decision making, reaction time, hand-eye coordination, cause confusion, irritability, and rapid changes in level of consciousness, he clearly posed a safety threat in a potentially arduous and dangerous law enforcement assignment.” Thus, Interior asserted, NPS‘s demotion of Atkins was a “good faith effort[] to follow their medical standards that applied to all Park Rangers in law enforcement positions with arduous duties,” and these standards were “implemented to protect employees, [Atkins]‘s co-workers, the general public and [Atkins] himself.” Such facts, as well as any other evidence in the record, could be considered by the district court when making its summary judgment determination. See United States v. Houston Pipeline Co., 37 F.3d 224, 227 (5th Cir. 1994) (“[T]he district judge is not compelled to limit the basis for summary judgment to those facts listed in the motion for summary judgment.“) (quoting Daniels v. Morris, 746 F.2d 271, 276 (5th Cir. 1984)); see also Cripe, 261 F.3d at 886 n. 9 (“Although the [defendant in this ADA suit] has mislabeled its argument and identified the wrong standard, such error does not cause us to hold that it waived the ‘business necessity’ defense. The [defendant] argued the relevant facts before the district court; that sufficiently put the plaintiffs and the court on notice of the actual issue the defendant should have specified.“).
In sum, Atkins raised the business necessity himself in his reply brief and later elaborated upon it in his sur-reply. Whether or not he had formal notice from the district court, Atkins was aware that the defense was at play and had a full opportunity to argue against it and present whatever relevant evidence he had. Notice from the district court that it intended to rely on the affirmative defenses would have made no difference to Atkins‘s briefing and so the lack of notice caused Atkins no harm. Moreover, a sua sponte grant of summary judgment without notice is proper “if all of the nonmovant‘s additional evidence is reviewed by the appellate court and none of the evidence presents a genuine issue of material fact,” Leatherman, 28 F.3d at 1398. As we discuss in the next section, we also hold that Interior was able to establish the business necessity defense. We, therefore, hold that the district court did not err in considering the business necessity defense in spite of its lack of notice to the parties when granting summary judgment and any error it may have made was harmless.
B. The Business Necessity Defense
We now arrive at the second issue, whether the district court‘s decision to grant summary judgment on the business necessity defense was correct. We hold that the district court‘s grant of summary judgment in favor of Interior on the basis of the business necessity defense was correct.
Section
It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria
that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.
To show a business necessity defense, a defendant must prove by a preponderance of the evidence that its qualification standards are: (1) uniformly applied; (2) job-related for the position in question; (3) consistent with business necessity; and (4) cannot be met by a person with plaintiff‘s disability even with a reasonable accommodation. See, e.g., Fifth Circuit Pattern Jury Instructions 11.7.4. For a qualification to be “job-related,” “the employer must demonstrate that the qualification standard is necessary and related to ‘the specific skills and physical requirements of the sought-after position.‘” Cripe v. City of San Jose, 261 F.3d 877, 890 (9th Cir. 2001) (quoting Belk v. Sw. Bell Tel. Co., 194 F.3d 946, 951 (8th Cir. 1999)). Similarly, for a qualification standard to be “consistent with business necessity,” the employer must show that it “substantially promote[s]” the business‘s needs. Bates v. United Parcel Service, Inc., 511 F.3d 974, 996 (9th Cir. 2007) (en banc) (quoting Cripe, 261 F.3d at 890). We have stated, concerning safety-based qualification standards, that
[i]n evaluating whether the risks addressed by a safety-based qualification standard constitute a business necessity, the court should take into account the magnitude of possible harm as well as the probability of occurrence. The acceptable probability of an incident will vary with the potential hazard posed by the particular position: a probability that might be tolerable in an ordinary job might be intolerable for a position involving atomic reactors, for example. In short, the probability of the occurrence is discounted by the magnitude of its consequences.
E.E.O.C. v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000).
The record before us strongly supports a finding of business necessity on the part of Interior. The NPS Standards are clearly job-related for a park ranger. Detterline v. Salazar, 320 Fed.Appx. 853, 858 (10th Cir. 2009) (noting that “the NPS requirements are reasonable and appropriate because Law Enforcement Park Rangers are subject to physical demands that might not be applicable to other NPS employment positions“). The Standards “are designed to ensure that employees performing law enforcement are physically able to perform that duty and that their performance does not constitute a threat to the health and well being of themselves, their fellow employees, and park visitors.” (emphasis added). Atkins himself acknowledged that he was responsible for a range of physically challenging and often isolated
The specific Standard under which Atkins was transferred is congruent with NPS‘s legitimate concern with ensuring the safety of the public and its employees, focusing on diabetes‘s propensity to “produce metabolic disturbances affecting weight, stress adaptation, energy production, and a variety of symptoms or pathology such as elevated blood pressure, weakness, fatigue and collapse,” all impediments to safely performing the work of a park ranger. It is clear, then, that the Standard‘s focus on the physical consequences of uncontrolled diabetes was “related to the specific skills and requirements” of being a park ranger and, therefore, job-related. Cripe, 261 F.3d at 890 (internal quotation marks and citation omitted).
The Standards also “substantially promote[d]” NPS‘s needs, “consistent with business necessity.” Bates, 511 F.3d at 996. As noted above, the Standards are “designed to ensure that employees performing law enforcement are physically able to perform that duty and that their performance does not constitute a threat to the health and well being of themselves, their fellow employees, and park visitors.” Moreover, as the MRB explained, hypoglycemic events may have serious consequences for a law enforcement officer:
One of the concerns [that NPS has with diabetic park rangers] is that you‘ve got to be able to react and respond appropriately in time-sensitive situations, and it requires the ability to use good judgment. Even though you‘ve got rescue meds, always remember that there is a lag time between the time you take your particular rescue medication and the time for that to act on your system. So in essence, if there was a critical situation that required your involvement and you had low blood-sugar and you took a candy bar, it really wouldn‘t be of any value. You‘d pretty much be incapacitated if there was a significant issue.
NPS is not required to wait until after there is an emergency to take action protective of the public and its employees.19
That Atkins did not experience an on-the-job incident is fortunate, but does not affect our conclusion. Other circuits, in the context of uncontrolled diabetes, have “recognized that where the [diabetic]‘s medical condition is uncontrolled, of an unlimited duration, and capable of causing serious harm, injury may be considered likely to occur,” even without evidence of prior incidents on the job. Cf. Darnell v. Thermafiber, Inc., 417 F.3d 657, 662 (7th Cir. 2005) (“[Diabetic plaintiff] argues that the fact that he worked at the plant for 10 months without experiencing an episode makes it doubtful that an injury is likely to occur. However, an employee with a health condition who has experienced no on-the-job episodes can still pose a direct threat to workplace safety.“). As we noted above, “the probability of the occurrence is discounted by the magnitude of its consequences.” See Exxon Corp., 203 F.3d at
NPS did not reach the conclusion that demoting Atkins was a business necessity haphazardly; it followed a uniform pattern application. The Standards rely on “[i]ndividualized assessments [to] be made on a case-by-case basis.” This is the kind of analysis we have required in other cases: “‘An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person,‘” Rodriguez v. ConAgra Grocery Pros. Co., 436 F.3d 468, 482 (5th Cir. 2006) (quoting Toyota Motor Mfg. Ky. Inc. v. Williams, 534 U.S. 184, 199 (2002)), and this assessment must be linked to the employee‘s “ability to perform the essential functions of [the job].” Kapche v. City of San Antonio, 304 F.3d 493, 499 (5th Cir. 2002).
Notably, NPS has not sought simply to exclude diabetics from serving as park rangers. See Kapche, 304 F.3d at 500 (holding that summary disqualification of police officer because of diabetic status was improper and that an “individualized assessment of an [applicant]‘s present ability to safely perform the essential functions of [a] police officer is required“). Rather, as the Manager of NPS‘s Medical Standards Program explained, for park rangers, “diabetes in and of itself is not nor has it ever been considered a disqualifying condition. Indeed, several Park Rangers who are Type 1 Insulin Dependent diabetics are medically qualified to perform their law enforcement duties.” Rather, the Standards are concerned with the “safety and health risks [posed by] Park Rangers whose diabetes is not controlled or unstable.” Park rangers with diabetes who are medically qualified for duty have “the ability to stabilize their blood sugar at acceptable levels.” Park rangers like Atkins, however, “whose particular medical conditions are not under control[,] ... have been determined not to be medically qualified to perform law enforcement duties.”
In determining, after two prior assessments, that “Atkins failed to meet the medical requirements imposed by
Atkins‘s personal efforts to control his diabetes offered little solace, either. “[Atkins‘s personal physician had] hoped to stabilize [his HA1C levels at] ‘the American Diabetes Association recommended goal for this value [of] less than or equal to 7.0[%] and th[at this] w[ould] be [her] personal goal for [Atkins‘s] level of control.‘” But “most of [Atkins‘s HA1C] levels ha[d] consistently remained above 8.0[%] and as high as 10.2[%], demonstrat[ing] [that Atkins] ha[d] not controlled [his] diabetes.”
Finally, no reasonable accommodation would cure the problems posed by a park ranger with “uncontrolled” diabetes like Atkins, at least not without inflicting “undue hardship” on NPS. See Bates, 511 F.3d at 996-97.20 In spite of two previous waivers with specific accommodations, instructions, and benchmarks, Atkins was unable to mitigate his fluctuating blood-glucose levels. NPS was rightly concerned that there was a significant “likelihood that [Atkins might] experience sudden or subtle incapacitation as a result of [his] medical condition,” indicating that his diabetic condition was neither “static or well stabilized,”
In conclusion, then, the record supports the district court‘s conclusion that there was no genuine issue of material fact regarding the business necessity defense and its grant of summary judgment in favor of Interior was proper.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s grant of summary judgment in favor of the Department of the Interior. All pending motions are DENIED.
Robert Anthony BROWN, Petitioner-Appellant v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 10-20095.
United States Court of Appeals, Fifth Circuit.
Dec. 12, 2011.
Notes
(1) prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service;
(2) ascertain the fitness of applicants as to age, health, character, knowledge, and ability for the employment sought; and
(3) appoint and prescribe the duties of individuals to make inquiries for the purpose of this section.
...
(e) An explanation of the impact of the medical condition on overall health and activities, including the basis for any conclusion that restrictions or accommodations are or are not warranted, and where they are warranted, an explanation of their therapeutic of risk [sic] avoiding value;
(f) An explanation of the medical basis for any conclusion which indicates the likelihood that the individual is or is not expected to suffer sudden or subtle incapacitation by carrying out, with or without accommodation, the tasks or duties of a specific position;
(g) Narrative explanation of the medical basis for any conclusion that the medical condition has or has not become static or well stabilized and the likelihood that the individual may experience sudden or subtle incapacitation as a result of the medical condition. In this context, “static or well stabilized medical condition” means a medical condition which is not likely to change as a consequence of the natural progression of the condition, specifically as a result of the normal aging process, or in response to the work environment or the work itself. “Subtle incapacitation” means gradual, initially imperceptible impairment of physical or mental function whether reversible or not which is likely to result in performance or conduct deficiencies. “Sudden incapacitation” means abrupt onset of loss of control of physical or mental function. ...
In this context, “static or well-stabilized medical condition” means a medical condition which is not likely to change as a consequence of the natural progression of the condition, specifically as a result of the normal aging process, or in response to the work environment or the work itself.