Daugherty v. City of El Paso, 94-50212

• Citation: 56 F.3d 695
• Decision Date: 03 July 1995
• Docket Number: No. 94-50212,94-50212
• Parties: 4 A.D. Cases 993, 11 A.D.D. 229 Carl DAUGHERTY, Plaintiff-Appellee, v. The CITY OF EL PASO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 695

56 F.3d 695

4 A.D. Cases 993, 11 A.D.D. 229

Carl DAUGHERTY, Plaintiff-Appellee, v. The CITY OF EL PASO, Defendant-Appellant.

No. 94-50212.

United States Court of Appeals,

Fifth Circuit.

July 3, 1995.

Daniel H. Hernandez, Laura K. Norden, Asst. City Attys., El Paso, TX, for appellant.

Howard A. Hickman, Smith & Gopin, El Paso, TX, for appellee.

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

Before REAVLEY, GARWOOD and EMILIO M. GARZA, Circuit Judges.

REAVLEY, Circuit Judge:

Carl Daugherty was awarded a money judgment against the City of El Paso under the Americans with Disabilities Act (ADA or Act), 42 U.S.C. Secs. 12101-12213. We reverse and render.

BACKGROUND

In 1991 Daugherty was hired by the city as a "coach operator," i.e. a public bus driver. This position was a part-time permanent position under the city's civil service regime. In June of 1992 Daugherty was diagnosed as an insulin-dependent diabetic. As a result of this diagnosis the city placed him on a leave of absence without pay and relieved him of his job as a coach operator. As discussed further below, Daugherty does not argue, nor do we see, that the city violated the ADA by relieving Daugherty of his position as a coach operator upon his diagnosis. Instead, Daugherty argues that a violation occurred because the city failed to pursue a waiver of his disqualification from operating a commercial motor vehicle with the Department of Transportation, and failed to place him in another position on the city payroll.

After a jury trial, the court entered a judgment for $5000 in compensatory damages as found by the jury, together with backpay, interest and attorney's fees as determined by the court.

DISCUSSION

The city raises numerous arguments on appeal. Among them, it argues that Daugherty does not have a disability under the ADA, that he was not a "qualified individual with a disability," and that the city established as a defense that it acted in good faith to make a reasonable accommodation for Daugherty. To place these arguments in legal context, we briefly set out the relevant contours of the ADA.

The ADA expansively prohibits discrimination in employment against persons with a disability, providing that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. Sec. 12112(a). A "disability" includes "a physical or mental impairment that substantially limits one or more of the major life activities of such individual" and "being regarded as having such an impairment." Id. Sec. 12102(2).

A "qualified individual with a disability" means "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. Sec. 12111(8). "Discrimination" includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." Id. Sec. 12112(b)(5)(A). "The term 'reasonable accommodation' may include ... 'reassignment to a vacant position.' " Id. Sec. 12111(9) (emphasis added). However, "[i]t may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards ... that screen out or tend to screen out or otherwise deny a job ... 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...." Id. Sec. 12113(a). " '[Q]ualification standards' may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." Id. Sec. 12113(b). "The term 'direct threat' means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." Id. Sec. 12111(3).

The city argues that Daugherty's medical condition is not a disability under the ADA. Finding other issues dispositive, we pretermit the question of whether insulin-dependent diabetes, either as a general matter or under the specific facts of this case, constitutes a disability under the Act. ¹

A. Qualified Individual with a Disability

The city argues that Daugherty was not a qualified individual with a disability. We agree in part. Daugherty was not qualified to perform the essential functions of a city bus driver once he was diagnosed as an insulin-dependent diabetic. He does not argue otherwise. He concedes in his brief that "[t]he Department of Transportation regulations ... prohibited him from operating a truck over 26,001 pounds or a bus which seats more than 16 passengers." The parties stipulated at trial that federal regulations prohibit individuals with insulin-dependent diabetes from operating commercial motor vehicles, i.e. those that weigh more than 26,001 pounds or buses which seat more than 16 people. ² Daugherty makes no argument that the ADA's requirement that the employer reasonably accommodate the disability would extend to violating federal law.

The city argues that our inquiry should end here. Daugherty argues, however, that as a reasonable accommodation, the city either should have requested a waiver from the Department of Transportation, or reassigned him to another position.

B. Reasonable Accommodation

1. Waiver of Federal Regulations

The Department of Transportation does provide for waivers of its regulatory requirements. There were disputes here as to whether a waiver is possible given Daugherty's medical condition, ³ and the extent to which the city pursued a waiver. Our decision, however, does not turn on these factual issues.

Instead, we believe we are bound by Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.1993). In Chandler, the City of Dallas adopted requirements for "primary drivers" whose positions require frequent driving. As in our case, the city followed Department of Transportation regulations which provide that an insulin-dependent diabetic is not a qualified driver. Plaintiff Chandler was deemed unqualified for his primary driver position as an electrical repairman. The district court entered relief in his favor. We reversed and rendered.

In Chandler, the claim was brought under the Rehabilitation Act, 29 U.S.C. Secs. 701-797b, which prohibits discrimination against individuals with disabilities in programs that receive federal financial assistance. The elements of a cause of action at issue in our case, however, are virtually the same under the Rehabilitation Act and the ADA. As explained above, the ADA prohibits discrimination against a "qualified individual with a disability," and discrimination includes not making a reasonable accommodation for "an otherwise qualified" individual with a disability. 42 U.S.C. Secs. 12112(a), 12112(b)(5)(A). Similarly, the Rehabilitation Act prohibits discrimination against an "individual with a disability" ⁴ who is "otherwise qualified." 29 U.S.C. Sec. 794. We also noted in Chandler that the two Acts define a disability in substantially the same terms. 2 F.3d at 1391.

In Chandler, we reasoned as follows. The definition of a qualified handicapped individual under the Rehabilitation Act includes a personal safety requirement:

[A]n otherwise qualified handicapped individual is defined as one who "can perform the essential functions of the position in question without endangering the health and safety of the individual or others." "[U]nder section 504, an individual is not qualified for a job if there is a genuine substantial risk that he or she could be injured or could injure others, and the employer cannot modify the job to eliminate that risk."

Id. at 1393 (quoting Chiari v. City of League City, 920 F.2d 311, 317 (5th Cir.1991)). Again, the ADA by its terms recognizes the same safety requirement. It allows qualification standards that "include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace," and defines a "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. Secs. 12113(b), 12111(3).

Pursuing this inquiry further, we held as a matter of law that a driver with insulin-dependent diabetes is not otherwise qualified because his medical condition presents a genuine substantial risk that he could injure himself or others:

The issue whether an insulin dependent diabetic is otherwise qualified for positions involving driving or other high risk activities has been addressed by several federal courts. Those courts have uniformly held that insulin dependent diabetics present an unacceptable risk, and are thus not otherwise qualified, to be employed as, inter alia, sanitation truck drivers or special agents with the Federal Bureau of Investigation. We are aware of no cases holding that insulin dependent diabetes does not present a significant risk in connection with the operation of motor vehicles on public highways.

We hold that, as a matter of law, a driver with insulin dependent diabetes ... presents a genuine substantial risk that he could injure himself or others. We echo the sentiment expressed by this court in Collier [v. City of Dallas, 798 F.2d 1410 (1986) ]: "Woe unto the employer who put such an employee behind the wheel of a vehicle owned by the employer which was involved in a vehicular accident."

2 F.3d at 1395 (citations, footnotes omitted).

A waiver of Department of Transportation regulations...