50 F.3d 278 (4th Cir. 1995), 94-1840, Myers v. Hose

Docket Nº:94-1840.
Citation:50 F.3d 278
Party Name:Joseph T. MYERS, Plaintiff-Appellant, v. Mitchell L. HOSE, Director of Personnel; Frederick County Board of Commissioners, Defendants-Appellees.
Case Date:March 29, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 278

50 F.3d 278 (4th Cir. 1995)

Joseph T. MYERS, Plaintiff-Appellant,


Mitchell L. HOSE, Director of Personnel; Frederick County

Board of Commissioners, Defendants-Appellees.

No. 94-1840.

United States Court of Appeals, Fourth Circuit

March 29, 1995

Argued Jan. 30, 1995.

Page 279

[Copyrighted Material Omitted]

Page 280

ARGUED: Willie James Mahone, Frederick, MD, for appellant. Daniel Karp, Allen, Johnson, Alexander & Karp, Baltimore, MD, for appellees.

Before WILKINSON, WILKINS, and LUTTIG, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge WILKINS and Judge LUTTIG joined.


WILKINSON, Circuit Judge:

This appeal presents the question whether an employer's duty to reasonably accommodate a disabled employee, who is presently unqualified for the position he holds, includes the obligation to grant the employee an indefinite period of time to correct his disabling condition. We think that such a requirement would contravene the meaning of the phrase "reasonable accommodation," as provided in the Americans with Disabilities Act ("ADA"), 42 U.S.C. Secs. 12101-12213. Accordingly, we affirm the judgment of the district court.


Appellant Joseph T. Myers worked as a bus driver for the County of Frederick, Maryland, from 1986 until 1992. He began as a parttime driver and was eventually promoted to full-time status. By all accounts, his tenure as a public transit employee was a distinguished one. Unfortunately, however, Myers has experienced serious health problems almost since the inception of his employment with the County.

Myers suffers from several disabling medical conditions. He has an extensive history of chronic heart disease and hypertension. In 1987, he was hospitalized for approximately ten days due to a heart attack. He was again hospitalized in 1991 for congestive heart failure and unstable angina, at which time he underwent cardiac catherization and coronary angioplasty. In addition, Myers has phlebitis of both legs, for which he has twice been admitted to the hospital. Myers is also diabetic.

Federal regulations issued by the Department of Transportation ("DOT") require commercial drivers who operate vehicles carrying sixteen or more passengers to undergo an initial physical examination and subsequent bi-annual examinations. Under the regulations, the examining physician must certify "[i]n the interest of public safety" that "the driver does not have any physical, mental or organic defect of such a nature as to affect the driver's ability to operate safely a commercial motor vehicle." Federal Motor

Page 281

Carrier Safety Regulations, 49 C.F.R. Sec. 391.43. The regulations specify that cardiovascular disease, accompanied by known congestive cardiac failure, precludes certification of the examinee. See id. Sec. 391.41. Similarly, Frederick County maintains a policy of testing drivers for certain minimum health requirements.

On December 4, 1991, Myers failed both the DOT and the County examinations. The attending physician diagnosed him with heart failure, hypertension, and uncontrolled diabetes. Had Myers failed only the more stringent DOT exam and passed the County physical, he would have been eligible to operate vehicles with a capacity of less than sixteen passengers. This, however, was not the case. Accordingly, the County Personnel Department on February 10, 1992, advised Myers' supervisor that he was unqualified to operate any County vehicle.

Myers met with Michael Stovall, Director of Citizen Services for Frederick County, to review the situation. They discussed whether Myers' diabetes could be controlled. Following the meeting with Stovall, Myers went to the office of Mitchell Hose, the County's Personnel Director. Hose presented Myers with several alternatives: he could resign, he could be dismissed, or, because he had served the requisite number of years with the County, he could retire with benefits. Myers protested that Stovall had promised to grant him time--to exceed his scheduled leave, if need be, and at half his salary--to reduce his blood sugar and thus control his diabetes. Hose evidently rejected this proposal, as Myers opted finally to retire. Myers remained on the County payroll, utilizing his paid sick and annual leave, until March 4, 1992.

Myers thereafter filed suit against Hose and the County Board of Commissioners. He alleged discrimination on the basis of handicap and race as well as wrongful discharge under state common law. The district court granted the defendants' motion for summary judgment on all counts, and Myers appeals from that judgment.


Myers' major claim is one of handicap discrimination. Section 504 of the Rehabilitation Act of 1973, as amended, provides in pertinent part that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, ... be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. Sec. 794(a). In 1990, Congress extended Sec. 504's prohibitions to private employers in the Americans with Disabilities Act. Pub.L. No. 101-336, 104 Stat. 328 (1990) (codified as amended at 42 U.S.C. Secs. 12101-12213). That legislation codified much of the case law and the implementing regulations developed under the Rehabilitation Act. The overlap between the two statutes is substantial: indeed, the ADA specifies that administrative complaints filed under either statute be "dealt with in a manner that avoids duplication of effort and prevents imposition of inconsistent or conflicting standards for the same requirements." 42 U.S.C. Sec. 12117(b); see Tyndall v. National Educ. Centers, 31 F.3d 209, 213 n. 1 (4th Cir.1994) (relying in an ADA case on Rehabilitation Act case law). In 1992, in order to clarify the standards governing federally-funded entities, Congress amended Sec. 504 to expressly incorporate the liability standards of the ADA. See Rehabilitation Act Amendments of 1992, Pub.L. No. 102-569, Sec. 506, 106 Stat. 4344, 4428 (1992) (codified at 29 U.S.C. Sec. 794(d) ("The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act....")). Thus, whether suit is filed against a federally-funded entity under the Rehabilitation Act or against a private employer under the ADA, the substantive standards for determining liability are the same.

The analysis for claims of employment discrimination against the disabled is a straightforward one. To resolve the question whether a person is an "otherwise qualified individual," a court must first consider whether that person is able to perform the essential functions of the job in question.

Page 282

School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987); see also 42 U.S.C. Sec. 12111(8) (codifying essential functions test). If the person is unable to do so, the court must nevertheless determine whether the person could do the job with reasonable accommodation. Arline, 480 U.S. at 287 n. 17, 107 S.Ct. at 1131 n. 17; see also 42 U.S.C. Sec. 12111(8) (codifying reasonable accommodation requirement). We adhere to this framework in assessing appellant's principal contention that the district court erroneously dismissed his claim of handicap discrimination. 1


It is clear that Myers is unable to perform the essential functions required of a bus driver. The basic function of a bus driver is to operate his motor vehicle in a timely, responsible fashion. It is essential that a driver perform these duties in a way that does not threaten the safety of his passengers or of other motorists. Strathie v. Department of Transp., 716 F.2d 227, 231-32 (3d Cir.1983).

Myers' demonstrated health problems preclude him from satisfying these basic requirements. Because Myers is diabetic, he could lose consciousness if his blood sugar rose above the proper level. See Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.1993) (holding as a matter of law that bus drivers with insulin dependent diabetes cannot perform the essential functions of their jobs). Even if Myers were able to control his diabetes, he has also been diagnosed with a severe heart condition and hypertension. In fact, he has been hospitalized for cardiac failure twice in the last eight years. As the examining physician testified, Myers' combined conditions present "a danger of, let us say, a change of consciousness or possibly [a] coma [or] stroke." Should appellant suffer any such symptoms while behind the wheel, he would be powerless to maintain control over his vehicle. Because this would profoundly compromise the safety of his passengers, pedestrians, and other motorists, Myers is unable to perform his essential duties....

To continue reading