UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEFFREY KAPCHE, :
:
Plaintiff, :
:
v. : Civil Action No. 07-2093 (JR)
:
ERIC HOLDER, Attorney General of :
the United States, :
:
Defendant. :
MEMORANDUM ORDER
Jeffrey Kapche is a Type 1 diabetic. In 2002, he
applied for a special agent position with the FBI. He received a
conditional offer in 2004, but it was later revoked because the
FBI determined that he did not have sufficient control over his
diabetes, and that he would be unable to take on certain
responsibilities of the position. Kapche sued under the
Rehabilitation Act. Earlier this year, a jury awarded him
$100,000 in damages. Dkt. 101. The defendant now renews his
motions for judgment as a matter of law and for a new trial. The
motions will be denied.
A. Judgment as a matter of law
Judgment as a matter of law should be granted only if
“the evidence and all reasonable inferences that can be drawn
therefrom are so one-sided that reasonable men and women could
not disagree on the verdict.” Duncan v. Wash. Metro. Area
Transit Auth., 240 F.3d 1110, 1113 (D.C. Cir. 2001).
To find for Kapche, the jury had to conclude that he:
(1) was disabled; (2) was qualified to perform the essential
functions of the position to which he applied; and (3) suffered
an adverse employment action because of his disability. Desmond
v. Mukasey, 530 F.3d 944, 952 (D.C. Cir. 2008). The defendant
contends that there was not enough evidence to support the jury’s
determination that Kapche was disabled.
As I explained in my jury instructions:
The term “disability” means a physical or
mental impairment that substantially limits
one or more [] major life activities. Type 1
diabetes is not a disability unless, in the
individual case, it substantially limits one
or more of a person’s major life activities.
Mr. Kapche contends that, in his individual
case, his Type 1 insulin-dependent diabetes
substantially limits the manner in which he
performs the major life activities of eating
and caring for himself when compared to an
average person in the general population.
In determining whether a limitation is
substantial, you must take into account the
effects of any mitigating or corrective
measures, both positive and negative, on
Mr. Kapche’s performance of the major life
activities of eating and caring for himself.1
1
The standard set forth in this paragraph is derived from
Sutton v. United Air Lines, 527 U.S. 471 (1999), which addressed
the term “disabled” in the Americans with Disabilities Act (ADA).
Congress recently amended the ADA to “reject the requirement
enunciated by the Supreme Court in [Sutton] and its companion
cases that whether an impairment substantially limits a major
life activity is to be determined with reference to the
ameliorative effects of mitigating measures.” Pub. L. No. 110-
325, § 2(b)(2), 122 Stat. 3553, 3554 (2008). But because the FBI
terminated Kapche’s application before this amendment took
effect, Sutton is the controlling law of this case.
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You may also consider these factors: The
nature and severity of the restriction, the
duration or expected duration of the
restriction, and the permanent or long-term
impact or expected long-term [] impact of or
resulting from the restriction.
Tr. 1022:21-1023:14.
Kapche adduced evidence and argued that, while his
diabetes was well-controlled, the measures he took to maintain
that control imposed substantial limitations on the way he ate
and cared for himself. The defendant submits that Kapche failed
to make that showing because he did not prove that his diabetes
control regimen differed from that of a typical Type 1 diabetic,
and that, in Sutton v. United Air Lines, 527 U.S. 471 (1999), the
Supreme Court found that the standard Type 1 diabetes treatment
regimen did not impose substantial limitations on any major life
activity. See Dkt. 112, at 4.
The defendant’s reading of Sutton turns the opinion on
its head. Under Sutton, to determine whether a plaintiff is
disabled, the fact finder must conduct an “individualized
inquiry” into whether the plaintiff’s condition -- or the
measures he takes to address that condition -- place substantial
limitations on his performance of major life activities. Sutton,
527 U.S. at 483. In dicta, to illustrate why the fact finder
should evaluate the plaintiff in his corrected state, the Court
notes:
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[C]ourts would almost certainly find all
diabetics to be disabled, because if they
failed to monitor their blood sugar levels
and administer insulin, they would almost
certainly be substantially limited in one or
more major like activities. A diabetic whose
illness does not impair his or her daily
activities would therefore be considered
disabled simply because he or she has
diabetes. Thus, [this] approach would create
a system in which persons often must be
treated as members of a group of people with
similar impairments, rather than as
individuals. This is contrary to both the
letter and spirit of the ADA.
Id. at 483-84. Mysteriously, the defendant reads this passage as
a holding that “the act of treating diabetes with insulin cannot,
by itself, constitute a disability absent some evidence of
difficulty or complications.” Dkt. 112, at 4. But this
paragraph is not a holding at all, much less a holding that
certain types of treatments can never constitute a disability
under federal law. The defendant’s interpretation would treat
diabetic plaintiffs “as members of a group of people with similar
impairments, rather than as individuals,” subverting Sutton’s
fundamental ruling.
In this individual case, there was enough evidence in
the record to support the jury’s finding that Kapche’s “Type 1
insulin-dependent diabetes substantially limit[ed] the manner in
which he perform[ed] the major life activities of eating and
caring for himself when compared to an average person in the
general population.” Kapche described his regimen as “a constant
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battle every day,” one where “the minute you don’t do [it] is
when you can have problems or complications.” Tr. 540:7-9. In
part, his regimen consisted of: testing his blood sugar several
times a day, Tr. 538: 18-19; closely monitoring the quality and
quantity of food he ate, Tr. 539:8-17; adjusting his food intake
and insulin levels before exercising or long days of work, Tr.
539:14-25; and recalculating his target insulin levels and food
intake when ill, Tr. 542: 23-543:7. One of Kapche’s expert
witnesses, Dr. James Gavin, stated that Kapche was “subject to a
number of severe limitations in terms of his eating and the way
he care[d] for himself,” and highlighted the severe consequences
Kapche would face if he did not maintain constant vigilance. Tr.
465:15-467:4.
At trial, through cross-examination and the
presentation of his own witnesses, the defendant made the same
argument that he makes now: that Kapche’s diabetes management
regimen is simply a hassle, and involves the same kinds of
monitoring and planning that one would do when on a diet. But
the jury determined that Kapche’s limitations were more
substantial -- a reasonable conclusion given the evidence before
them.
B. New trial
The defendant seeks a new trial on three grounds:
first, that I should not have allowed Dr. Gavin to present his
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opinion on whether Kapche was disabled; second, that I should not
have permitted Dr. Gavin to testify that Kapche was medically
qualified to perform the essential functions of an FBI special
agent; and third, that I should have allowed the defendant to
cross-examine Dr. Gavin on the differences between two insulin-
delivery mechanisms. None of these rulings was a “clear
miscarriage of justice,” necessitating a new trial. McNeal v.
Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 646 (D.C. Cir.
1988).
The defendant contends that Dr. Gavin did not have a
factual basis for his opinion that Kapche was disabled because he
was not familiar with Kapche’s “specific management of his
diabetes.” Dkt. 112, at 18. The defendant is right that
Dr. Gavin did not personally conduct an examination of Kapche,
but he did review a host of records that documented Kapche’s
treatment regimen, including the FBI’s medical examination of
Kapche and depositions of the FBI’s doctors and Kapche’s treating
physician. Tr. 461:17-462:14. I allowed cross-examination of
Dr. Gavin on the basis of his conclusions, and the cross was
extensive, eliciting the points defendant makes on this motion:
that Dr. Gavin had never met Kapche, let alone examined him, Tr.
486:19-487:1; that he only had a limited set of medical records
to assess Kapche’s treatment regimen, Tr. 487:2-490:9; and that
he was unaware of certain aspects of Kapche’s regimen, Tr.
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490:16-491:19. The jury was free to discount Dr. Gavin’s
testimony accordingly, but the gaps the defendant has identified
in Dr. Gavin’s account are not so large as to render his opinion
inadmissible.
Similarly, the defendant argues that there was no
factual basis for Dr. Gavin’s testimony that Kapche was medically
qualified to be an FBI special agent. That is not the case. On
direct examination, Dr. Gavin stated, “since I was asked to
comment on the issue of whether or not [Kapche] was qualified to
be an agent, and I assume that to be medically qualified, I had
to depend on the input from the [FBI’s] examining physician. And
in this case I relied on the fairly extensive physical
examination and historical record that had been obtained by the
examining physician on behalf of the FBI.” Tr. 462:9-14. Based
on his review of that examination, Dr. Gavin said that he
“agree[d] with the FBI’s examining physician . . . that [Kapche]
appears to have been fully qualified to assume the
responsibilities that they were vetting him for.” Tr. 462:18-21.
On cross-examination, Dr. Gavin reiterated that his
opinion was based on the findings of the FBI’s examining
physician, Dr. Burpeau, and that neither he nor Dr. Burpeau had a
background in occupational medicine. Tr. 493:8-497:2. He also
admitted that he did not know what the essential functions of an
FBI special agent were. Tr. 497:13-19. Again, the jury could
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discount or ignore Dr. Gavin’s testimony accordingly, but
Dr. Gavin’s review of Dr. Burpeau’s medical findings, and his
background of treating diabetics with physically demanding jobs,
provided an adequate basis for his opinion that Kapche was
medically qualified to be an FBI special agent.
Finally, the defendant seeks a new trial because I
would not allow him to cross-examine Dr. Gavin on whether the
FBI’s preferred diabetes treatment method (the “pump”) was
superior to Kapche’s treatment method (the “pen”) given the
demands of the special agent position. Kapche attacked the
medical basis for the FBI’s pump requirement through the expert
testimony of Dr. Desmond Schatz, and I allowed the defendant to
cross-examine Dr. Schatz at length about the features of both the
pump and the pen. See Tr. 221-66. But I foreclosed a similar
cross-examination of Dr. Gavin because he simply stated that
Kapche could perform the duties of a special agent while using
the pen. Dr. Gavin did not hold himself out as an expert on the
relative virtues of the pump and the pen, and he did not
criticize the FBI for its pump requirement. Thus, the cross-
examination the defendant sought was beyond the scope of
Dr. Gavin’s direct testimony.
* * *
The defendant’s motions [# 104] for judgment as a
matter of law and for a new trial are denied.
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It is SO ORDERED.
JAMES ROBERTSON
United States District Judge
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Kapche v. Gonzales
Combined Opinion