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