Kapche v. City of San Antonio

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________________

No. 98-50345
_______________________________________

JEFF KAPCHE,

Plaintiff-Appellant,

versus

CITY OF SAN ANTONIO,

Defendant-Appellee.
_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas

_________________________________________________________________
May 20, 1999
Before JOLLY, WIENER, and PARKER, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Jeff Kapche appeals the district court’s

grant of summary judgment dismissing his employment discrimination

claims against the City of San Antonio on the ground that, under

Fifth Circuit precedent, a driver with insulin-dependent diabetes

poses a direct threat to the health and safety of others, as a

matter of law. In light of changes to the federal regulations on

which our precedent was partly based, as well as possible

advancements in medical technology, we vacate the district court's

order and remand the case for a determination of the continued

viability of this per se rule.

I
 FACTS AND PROCEEDINGS

Kapche is an insulin-dependent diabetic who, in February 1994,

applied for employment as a police officer with the San Antonio

Police Department (“SAPD” or “the department”). In accordance with

the department’s policy, Kapche engaged in a three-step application

process, consisting of a written examination, a background check,

and a physical/mental examination. Following Kapche’s medical

exam, Ariel Hernandez, M.D. —— the department’s staff physician ——

notified the department that Kapche had insulin-dependent diabetes

mellitus, and that such condition was disqualifying for the

position of police cadet. Thereafter, despite Kapche’s successful

completion of both the written test and the background check, the

department removed Kapche’s name from its eligibility list.1

Kapche appealed the SAPD’s decision and requested that a panel

of physicians review his physical capabilities.2 The two reviewing

doctors —— Vijay Koli, M.D., and Bruce Brockway, M.D. —— confirmed

Dr. Hernandez’s initial evaluation, concluding that, because of

1
Kapche received a rejection notice stating: “We are sorry to
inform you that you have been disqualified on your physical/mental
examination, and we are at this time removing your name from the
eligibility list for the position of police cadet. You were
disqualified because of: Insulin dependent diabetic [sic] mellitis
[sic] is disqualifying.”
2
Texas law entitles a disqualified applicant to physical
examinations conducted by a panel of three physicians. For job
processing to resume, two of the three reviewing physicians must
overturn the applicant’s initial disqualification.

2
Kapche’s diabetes, he did not meet the requirements for the job.3

Thereafter, following the exhaustion of his state administrative

remedies, Kapche brought suit in federal district court alleging

that the SAPD “refused to hire [him] because of a physical

condition that does not impair [his] ability to reasonably perform

a job” in violation of the Americans with Disabilities Act (“ADA”

or the “Act”),4 and the Texas Commission on Human Rights Act

(“TCHRA”).5

In response, the City filed a motion for summary judgment

which the district court granted in part.6 Relying on Chandler v.

City of Dallas,7 and Daugherty v. City of El Paso,8 the court held

that, as a matter of law, Kapche is not qualified to be a police

officer because his diabetic condition “presents a genuine

substantial risk that he could injure himself or others.” Kapche

3
After two physicians confirmed Kapche’s disqualification,
there was no longer any chance that Kapche would get the majority
vote needed to overturn Dr. Hernandez’s decision. Consequently, it
seems, Kapche did not receive a third appellate examination.
4
42 U.S.C. §§ 12101-213 (1997).
5
TEX. LAB. CODE ANN. § 21.105 (Vernon 1996).
6
Likewise, Kapche moved for and was granted, in part, summary
judgment on the issue of the City’s liability for conducting a pre-
offer medical examination in violation of 42 U.S.C. § 12112(d).
Because Kapche was subsequently unable to establish proof of
damages resulting from the premature exam, however, the district
court granted summary judgment in favor of the City on this issue.
Kapche did not appeal the district court’s order.
7
2 F.3d 1385 (5th Cir. 1993).
8
56 F.3d 695 (5th Cir. 1995).

3
filed a motion for reconsideration which was denied. He now seeks

relief on appeal.

II

ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo, applying the

same standard as the district court.9 Summary judgment is

appropriate when the evidence, viewed in the light most favorable

to the nonmoving party, presents no genuine issue of material fact

and shows that the moving party is entitled to judgment as a matter

of law.10

B. The ADA

The ADA makes it unlawful for an employer to discriminate

against a “qualified individual with a disability” because of that

individual’s disability.11 To prevail on a claim under the Act, a

plaintiff must prove that (1) he has a “disability”, (2) he is

“qualified” for the position in which he seeks employment, and (3)

an adverse employment decision was made because of his disability.12

As defined under the Act, a “disability” includes “a physical

9
Melton v. Teacher's Ins. & Annuity Ass'n of America, 114 F.3d
557, 559 (5th Cir.1997).
10
River Prod. Co., Inc. v. Baker Hughes Prod. Tools, Inc., 98
F.3d 857, 859 (5th Cir.1996) (citing FED.R.CIV.P. 56(c)).
11
42 U.S.C. § 12112(a)(1997).
12
Buchanan v. City of San Antonio, 85 F.3d 196 (5th Cir. 1996).

4
or mental impairment that substantially limits one or more of the

major life activities.”13 A “qualified individual with a

disability” is a disabled person who, “with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires.”14 As

a general rule, an employer may develop and use qualification

standards or other selection criteria in an attempt to screen out

individuals who cannot perform the essential functions of the job.15

According to the Act, an employer may require, for example, that an

employee not pose a “direct threat” to other individuals in the

workplace.16 Despite the leeway an employer is granted in the

determination of who it will and will not hire, if an employer

imposes eligibility requirements that tend to screen out the

disabled, that employer will be deemed to have “discriminated”

under the Act, unless it can prove that application of a particular

standard or criterion is “job-related” and “consistent with

business necessity.”17

C. Qualified Individual with a Disability

The City concedes that Kapche’s insulin-dependent diabetes

13
42 U.S.C. § 12102(2)(A)-(C)(1997).
14
Id. at § 12111(8)(1997).
15
29 C.F.R. § 1630.2(m) & (q)(1998). See also 42 U.S.C. §
12113(a)(1997);
16
42 U.S.C. § 12113(b)(1997)(emphasis added).
17
Id. § 12112(b)(6)(1997).

5
renders him disabled, and that Kapche was eliminated from the

application process because of this disability. Consequently, the

only issue in dispute is whether, with or without accommodation,

Kapche is qualified to perform the essential functions of the job.

1. Essential Functions

“Essential functions” are those duties that are fundamental to

the job at issue.18 In holding Kapche unqualified for the position

of police officer, the district court assumed, without finding,

that Kapche would be required to drive a vehicle as an essential

function of his job. In his motion for reconsideration and again

on appeal, Kapche challenges the factual support for this

assumption.

According to the EEOC’s implementing regulations, a job

function may be considered essential if, for example, (1) the

purpose of the position is the performance of that function, (2)

only a limited number of employees are available among whom the

performance of that function can be delegated, or (3) an employee

is hired because of his expertise or ability to perform a

specialized function.19 To aid in the determination of whether a

function is essential, a court may consider as evidence a variety

of factors including, but not limited to, (1) the employer’s

judgment as to which functions are essential, (2) written job

18
29 C.F.R. § 1630.2(n)(1)(1998).
19
Id. § 1630.2(n)(2)(i)-(iii)(1998).

6
descriptions prepared before advertising or interviewing applicants

for the job, (3) the amount of time spent on the job performing the

function, and (4) the work experience of both past and current

employees in the job.20

In the instant case, the City offered as evidence a

declaration from the deputy chief of police that, to become an

officer with the SAPD, an applicant is required to complete a six

month training course. As an integral part of this course, the

applicant undergoes instruction in defensive and high performance

driving. The evidence further shows that, on completion of his

training, a new police officer is placed on probation for a period

of one year, during which time he is assigned, without exception,

to serve in the Patrol Division of the department. As part of his

service as a patrolman, an officer must have his police vehicle

with him whenever he is on duty. According to the “City of San

Antonio Functional Job Analysis,” entered into evidence by Kapche,

an officer position with the SAPD requires use of a vehicle 60% of

the time. Although there is evidence to suggest that some officers

do hold “desk jobs,” it is also clear from the record that these

jobs are only available to individuals who have completed both the

training course and the probationary period of service. None is

hired anew to fill a desk job.

Based on our de novo review of the summary judgment evidence,

20
Id. § 1630.2(n)(3)(i)-(vii)(1998).

7
we conclude that Kapche has failed to raise a fact question about

whether driving is an essential function of the SAPD police job for

which he applied.

2. Direct Threat

Having determined that driving is an essential function, we

now turn to the question whether Kapche is qualified, with or

without accommodation, to perform this function. The City answers

this question in the negative, insisting that Kapche’s diabetic

condition would prevent him from being able to conduct his police

work —— his driving responsibilities, in particular —— safely. In

other words, the City claims, Kapche is a “direct threat.”

To constitute a direct threat, an individual must pose a

“significant risk to the health or safety of others that cannot be

eliminated by reasonable accommodation.”21 According to the EEOC’s

implementing regulations, the determination that a person poses a

direct threat shall be based on an individualized assessment of the

person’s “present ability to safely perform the essential functions

of the job.”22 In Chandler v. City of Dallas23 and Daugherty v. City

21
42 U.S.C. § 12111(3)(1997).
22
29 C.F.R. § 1630.2(r)(1998)(providing also that such
assessment “shall be based on a reasonable medical judgment that
relies on the most current medical knowledge and/or the best
available objective evidence” and listing four factors relevant to
the determination of whether an individual would pose a direct
threat). See also Rizzo v. Children’s World Learning Ctrs., 84
F.3d 758, 763 (5th Cir. 1996).
There is nothing in the express language of the Act that
requires an individualized assessment of job applicants. When a
statute is silent on an issue, however, courts should defer to the

8
of El Paso,24 however, we created a tacit exception to this case-by-

case approach, holding that drivers with insulin-dependent diabetes

pose a direct threat as a matter of law.25 It is to consider the

continued viability of this exception —— both (1) as a general

principle, and (2) in the specific context of drivers with insulin-

dependent diabetes —— that the remainder of this opinion is

devoted.

In Chandler, plaintiffs filed a class action suit against the

City of Dallas after it adopted a driver safety program that

established physical standards for city employees who were Primary

Drivers, i.e., those employees required to drive on public roads as

an intrinsic part of their job. The standards established by the

program were patterned on safety regulations promulgated by the

United States Department of Transportation (“DOT”).26 If an

administering agency’s regulation, as long as that regulation is
based on a permissible construction of the enabling statute. See
Chevron v. Natural Resources Defense Council, 467 U.S. 837, 843-44
(1984).
23
2 F.3d 1385 (5th Cir. 1993).
24
56 F.3d 695 (5th Cir. 1995).
25
Chandler, 2 F.3d at 1395; Daugherty, 56 F.3d at 698.
26
At the time Chandler was decided, 49 C.F.R. § 391.41 (1992)
provided in pertinent part:
(a) A person shall not drive a motor vehicle unless he is
physically qualified to do so . . . .
(b) A person is physically qualified to drive a motor vehicle
if that person ——
. . .
(3) Has no established medical history or clinical diagnosis
of diabetes mellitus currently requiring insulin for control;

9
employee did not meet these standards, he was classified as

ineligible for Primary Driver jobs. Included in these standards

was the requirement that a driver not have an established medical

history of diabetes mellitus severe enough to require insulin

control.

Chandler, an insulin-dependent diabetic, did not contest the

City’s assertion that driving was an essential function of every

Primary Driver position. Instead, argued Chandler, he was

qualified to perform this function without accommodation. Because

the City’s program classified insulin-dependent diabetics as

ineligible per se for Primary Driver positions, Chandler contended

that the program discriminated against him in violation of the

Rehabilitation Act.27

We rejected Chandler’s argument, holding that, as a matter of

law, a driver with insulin-dependent diabetes presents a genuine

substantial risk of injury to both himself and others. In a

footnote, we tempered this holding by expressing our hope that

someday “methods of control may become so exact that insulin-

dependent diabetics will present no risk of ever having a severe

. . . .
27
The Rehabilitation Act prohibits discrimination against an
otherwise qualified individual with a handicap (now an individual
with a disability) in programs that receive federal financial
assistance. The Rehabilitation Act defines an “individual with
handicaps” in substantially the same terms as the ADA defines a
“disability.” See 29 U.S.C. § 706(8)(B)(1998); 42 U.S.C. §
12102(2)(A)-(C)(1997).

10
hypoglycemic episode” and that “exclusions on a case by case basis

will be the only permissible procedure.”28 Given the medical

climate at the time, however, we concluded that an insulin-

dependent diabetic is not qualified for positions that require

driving as an essential function, absent proof that a reasonable

employer accommodation will eliminate the safety risk posed by that

driver. As Chandler failed to produce evidence that reasonable

accommodation was possible, or that such accommodation would

eliminate the safety risk inherent in his driving, we concluded

that Chandler was not qualified for the job.

In Daugherty, we extended our holding in Chandler to

plaintiffs seeking relief under the ADA. Daugherty was fired from

his part-time permanent position as a public bus driver with the

City of El Paso after being diagnosed as an insulin-dependent

diabetic. At trial, the parties conceded that extant DOT

regulations prohibited individuals with insulin-dependent diabetes

from operating commercial motor vehicles, i.e., those that weigh

over 26,001 pounds or buses which seat more than 16 passengers.29

Daugherty did not contend that he was qualified without

accommodation to perform the essential functions of a city bus

28
Chandler, 2 F.3d at 1395 n.52.
29
56 F.3d at 697. As the driver of a public bus —— a
commercial motor vehicle —— Daugherty was required to have a
commercial driver’s license (a “CDL”). 49 C.F.R. § 383.23(a)(2)
(1994). To obtain a CDL, federal law required that he meet certain
physical qualifications, including the absence of insulin-dependent
diabetes. 49 C.F.R. §§ 383.71(a)(1), 391.41(b)(3)(1994).

11
driver, i.e. driving. Rather, he contended that the City should

have reasonably accommodated him by requesting a waiver of the

federal regulations from the Department of Transportation or by

reassigning him to another position.

Although we acknowledged that a waiver might overcome the

legal impediment to Daugherty’s driving, we also noted that such a

waiver would not address the safety concern stated in Chandler.

Hence, we held that, under the ADA, an insulin-dependent diabetic

is not qualified for the position of bus driver, as a matter of

law. As Daugherty failed to demonstrate that he had been treated

differently from any other part-time employee whose job was

eliminated, we further concluded that the City did not violate its

reasonable accommodation obligation under the ADA.

(i) Exceptions to the Individualized Assessment Rule

In light of our holdings in Chandler and Daugherty, it

appears, at least on first blush, that employers in this circuit

may exclude an insulin-dependent diabetic (like Kapche) from a job

that requires driving (like that of police officer) without ever

conducting an individualized assessment of the applicant’s actual

ability to perform the job safely. Unfortunately, absent from our

written reasons in either Chandler or Daugherty is any attempt to

square this outcome with the EEOC regulation which requires,

seemingly without exception, the individualized assessment of all

job applicants and employees. As it is unclear from these opinions

12
whether we considered the inevitable conflict with this regulation

that would be generated by our creation of a blanket rule, it is

likewise debatable what changes, if any, in the factual or legal

underpinnings of Chandler and Daugherty, should affect the

viability of this exception. Consequently, without a supervening

en banc decision to guide us, we must operate under the assumption

that, regardless of intervening changes in the circumstances under

which Chandler and Daugherty were decided, an exception to the EEOC

regulation requiring individualized assessment is permissible.

Thus, we must now determine whether, in the case of drivers with

insulin-dependent diabetes, such an exception remains

scientifically valid.

(ii) Viability of a Per Se Rule in the Context of Drivers
with Insulin-Dependent Diabetes

In holding that drivers with insulin-dependent diabetes pose

a direct threat as a matter of law, we relied, in Chandler and

Daugherty, on a generalized safety determination drawn from our

review of both DOT regulations and case law. We contemplated a

departure from our per se holdings, however, in the event that

medical technology should advance to the point that insulin-

dependent diabetics no longer pose a danger to themselves or

others. Given significant changes in the federal highway safety

regulations, as well as purported scientific advancements in the

control of diabetes, Kapche argues that the time has now come to

reevaluate the Chandler/Daugherty rule. We agree.

13
 At the time Chandler and Daugherty were decided, the Federal

Motor Carrier Safety Regulations specifically prohibited all

insulin-dependent diabetics from obtaining licenses to drive.15 In

Chandler, we noted that these regulations were implemented, at

least in part, for the purpose of improving highway safety.16

Because the Federal Highway Administration had declined numerous

opportunities to update or amend these regulations, we inferred

that the safety concerns underlying these regulations —— including

those concerns pertaining to the risks posed by diabetic drivers ——

remained. In reaching our determination regarding the safety of

drivers with diabetes mellitus, we also drew on cases in which

other federal courts had held that such individuals present an

unacceptable risk when employed in positions that require driving

or similarly high risk activities.17 When taken together, these

sources form the foundation on which our holdings in Chandler and

15
49 C.F.R. § 391.41(a) & (b)(3)(1992).
16
Chandler, 2 F.3d at 1395 (quoting the preamble to the
regulations: “Accident experience in recent years has demonstrated
that reduction of the effects of organic and physical disorders,
emotional impairments, and other limitations of the good health of
drivers are increasingly important factors in accident
prevention.”).
17
See Serrapica v. City of New York, 708 F. Supp. 64, 73 (S.D.
N.Y 1989)(holding, but not as a matter of law, that the City’s
disqualification from the position of sanitation truck driver of an
insulin-dependent diabetic, who was in poor control of his disease,
was not a violation of the Rehabilitation Act); Davis v. Meese, 692
F. Supp. 505, 518 (E.D. Penn. 1988)(holding that the FBI’s blanket
exclusion of all insulin-dependent diabetics from positions as
special agents or investigative specialists was rationally based on
valid medical opinion and on health and safety concerns).

14
Daugherty were based. It appears, however, that in recent years

this once solid foundation may have eroded a bit.

In October of 1995, the Department of Transportation amended

its highway safety regulations to abolish the prohibition of

insulin-dependent diabetics from the operation of noncommercial

motor vehicles.18 Although nothing in either Chandler or Daugherty

indicates that a change in the regulations alone is sufficient to

overcome our per se rule,19 such a change by DOT may very well

signal a decrease in the safety risk posed by insulin-dependent

diabetics. In its amicus brief to this court, the American

Diabetes Association offers cogent support for this position. The

Association highlights several recent studies and reports which

demonstrate that drivers with insulin-dependent diabetes pose no

greater danger than do drivers without the disease and the

dependency. In addition, the Association points to technological

improvements which have significantly increased the ability of

18
60 F.R. 38,744-45(1995); 49 C.F.R. § 391.41(a) &
(b)(3)(1995). With this amendment, individuals having diabetes
mellitus are now prohibited only from operating commercial motor
vehicles. Id. Technically, therefore, under the new law,
individuals like Chandler (and Kapche) would face no legal
impediment to obtaining a noncommercial drivers license.
Daugherty, however, would still be prohibited from operating a bus.
19
In fact, just months before the effective date of DOT’s
amendment, we concluded in Daugherty that, even if DOT were to
waive its regulations in a particular case, the safety risk posed
by insulin-dependent diabetic drivers would remain. There is
nothing in Daugherty to indicate that we perceived any difference
in the safety risks posed by commercial versus noncommercial
diabetic drivers.

15
diabetics to monitor blood sugar levels and thereby prevent

hypoglycemic reactions.

In light of this evidence, we find there to be a genuine

dispute of material fact regarding the safety risk posed by

insulin-dependent drivers with diabetes mellitus. Consequently, we

conclude, the time has come for a reevaluation of the facts that

supported our prior per se holdings in Chandler and Daugherty. To

this end, we vacate the district court’s grant of summary judgment

in favor of the City and remand for a determination whether today

there exists new or improved technology —— not available at the

time these cases were decided —— that could now permit insulin-

dependent diabetic drivers in general, and Kapche in particular, to

operate a vehicle safely.

Based on our de novo review of the summary judgment evidence,

we conclude that the City’s physicians did not conduct an

individualized assessment of Kapche’s present ability to perform

safely the essential functions of a police officer. Therefore, if

the district court finds a sufficient factual basis for overcoming

the per se rule of Chandler/Daugherty, that court should open

discovery (or conduct a full blown merits trial) for a

determination of Kapche’s qualification to perform all of the

essential functions of the job.

Also based on our de novo review, we conclude that Kapche has

failed to raise a genuine issue of material fact whether the City

violated its reasonable accommodation obligation under the ADA.

16
Thus, if the district court should find a sufficient factual basis

for concluding that, without accommodation, insulin-dependent

diabetic drivers continue to pose a direct threat as a matter of

law, the court should reinstate summary judgment in favor of the

City.

Consistent with the foregoing instructions, we

VACATE and REMAND.

17