Atkins v. Salazar

• Decision Date: 12 December 2011
• Docket Number: No. 10–60940.,10–60940.
• Citation: 677 F.3d 667
• Parties: David A. ATKINS, Plaintiff–Appellant, v. Ken SALAZAR, Secretary, Department of the Interior, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

677 F.3d 667

David A. ATKINS, Plaintiff–Appellant,

v.Ken SALAZAR, Secretary, Department of the Interior, Defendant–Appellee.

No. 10–60940.

United States Court of Appeals, Fifth Circuit.

Dec. 12, 2011.

John Wallace Griffin, Jr. (argued), Marek, Griffin & Knaupp, Robert Edward McKnight, Jr. (argued), Law Office of Robert E. McKnight, Jr., Victoria, TX, Jim D. Waide, III, Waide & Associates, P.A., Tupelo, MS, for Plaintiff–Appellant.

Ava Nicola Jackson (argued), Feleica Lockhart Wilson (argued), Asst. U.S. Attys., Oxford, MS, for Defendant–Appellee.

Brian D. East, Sr. Atty., Advocacy, Inc., Austin, TX, for American Diabetes Ass'n, Amicus Curiae.Appeal from the United States District Court for the Northern District of Mississippi.

Before KING, GARZA and GRAVES, Circuit Judges.

PER CURIAM:

Plaintiff–Appellant David Atkins, a law enforcement park ranger, was transferred to a staff ranger position based on the conclusion of a medical review board constituted by the National Park Service (an agency of the Department of the Interior) that his uncontrolled diabetes could prevent him from safely performing his duties. Atkins filed suit under the Rehabilitation Act, claiming that his transfer amounted to discrimination on the basis of his alleged disability. The litigation focused on Atkins's challenge to the Department of the Interior's affirmative defense that Atkins's transfer was job-related and consistent with business necessity. The district court granted summary judgment for the Department of the Interior, and Atkins appeals. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Atkins's Transfer

In 1984, Plaintiff–Appellant David Atkins (“Atkins”) began employment at the National Park Service (“NPS”), an agency of the Department of the Interior (“Interior”), as a law enforcement park ranger (“park ranger”). Atkins was diagnosed with Type 1 diabetes in 1986.

In March 1999, Interior promulgated new medical qualification standards (the “Standards”) for park rangers. The Standards were created pursuant to 5 C.F.R. pt. 339, entitled “Medical Qualification Determinations,” which was promulgated, after a notice-and-comment process, in 1989.¹ This regulation provides that executive agencies may establish medical standards for government-wide occupations. “Such standards must be justified on the basis that the duties of [a covered] position are arduous or hazardous, or require a certain level of health status or fitness because the nature of the position [ ] involve a high degree of responsibility toward the public or sensitive national security concerns.” 5 C.F.R. § 339.202. The regulation further requires that “[t]he rationale for establishing the standard must be documented. Standards established by ... an agency must be:

(a) Established by written directive and uniformly applied,

(b) Directly related to the actual requirements of the position.”

Id.

Agencies are, therefore, “authorize[d] to establish physical requirements for individual positions ... when such requirements are considered essential for successful job performance. The requirements must be clearly supported by the actual duties of the position.” 5 C.F.R. § 339.203. Similarly, “[a]gencies may establish periodic [medical] examination ... programs by written policies or directives to safeguard the health of employees whose work may subject them or others to significant health or safety risks due to occupational or environmental exposure or demands.” 5 C.F.R. § 339.205.² Again, “[t]he need for a medical evaluation program must be clearly supported by the nature of the work.” Id.

Following the directives of 5 C.F.R. pt. 339, NPS issued Director's Order # 57: Occupational Medical Standards, Health and Fitness (the “Order”) on March 1, 1999. The Order observed that a 1996 study conducted by Interior had proposed the adoption of new medical standards for park rangers. Consequently, NPS decided to “adopt appropriate medical standards .... [with] a specific goal [of] ensur[ing] that all employees assigned law enforcement, fire fighting, and other physically rigorous duties are able to safely perform those duties.” The Order made clear that “[a]n employee who does not meet the medical standards established for such work may not perform law enforcement or fire fighting work ... unless the Medical Standards Board approves a request for reasonable accommodation.” Following the issuance of the Order, NPS issued the Standards.

The Standards themselves cover a range of physiological requirements and include a nonexhaustive list of “medical conditions and/or physical impairments that may be disqualifying.” The Standards specifically provide that “[i]ndividual assessments will be made on a case-by-case basis to determine an individual's ability to meet the performance related requirements covered by these standards.” The relevant Standard for the instant case is the “Endocrine and Metabolic Systems Standard,” which deals with “excess[es] or deficienc[ies] in hormonal production [that] can produce metabolic disturbances affecting weight, stress adaptation, energy production, and a variety of symptoms or pathology such as elevated blood pressure, weakness, fatigue[,] and collapse.” Under this Standard, “[a]ny condition affecting normal hormonal/metabolic functioning and response that is likely to adversely affect safe and efficient job performance is generally disqualifying.” Among the listed “conditions which may result in disqualification” is “insulin dependent diabetes mellitus,” which Atkins has.

Pursuant to this Standard, a medical review of Atkins was conducted on June 27, 2000. Following the review, on July 29, 2000, Atkins was found not to be medically qualified to serve as a park ranger due to his poor vision, his history of asthma, and his diabetic condition.³ Atkins appealed this decision, and on July 31, 2002, NPS's Medical Review Board (“MRB”) granted him a medical waiver, since his “diabetic condition ... [was] becoming well controlled.” The waiver, however, also established several “reasonable accommodations” that Atkins would have to meet, including HA1C testing⁴ at intervals recommended by Atkins's physician, more frequent blood testing while on duty, an exercise program, and the use of an insulin pump. A subsequent 2003 medical review found that Atkins was still not medically fit for his job due to his poor eyesight and diabetes, but the MRB granted him a second waiver on June 30, 2003, subject to approximately the same conditions as the first waiver. Atkins was medically reviewed again in 2005 and was found once again not to be medically qualified to serve as a park ranger and was placed on light duty status.⁵

In placing Atkins on light duty, the MRB explained to Atkins that he was not in compliance with the requirements of his previous waiver. In particular, the MRB observed, the examining physician had reported that Atkins's most recent HA1C test showed an elevated level of 9.4%, meaning that Atkins's diabetes did “not appear to be well controlled.” The MRB further observed that Atkins was also at risk for hypoglycemia, which is a state of lowered glucose levels that is capable of “affect[ing] attention, concentration, thinking, judgment, decision-making, reaction time[,] and hand-eye coordination, along with causing irritability, confusion[,] and rapid changes in [an individual's] level of consciousness.” In particular, the MRB noted that “the risk of hypoglycemia is higher for individuals who use insulin, especially ... an insulin pump.” For park rangers, with their “arduous and hazardous” duties, often “performed under variable and unpredictable working conditions ... includ[ing] unplanned mealtimes [and the] possibility of missed meals,” there is “potential for hypoglycemia.”⁶

Atkins appeared before the MRB to appeal the denial of his waiver. While the MRB recognized that Atkins had performed his duties without incident, one MRB member summarized NPS's concerns as follows:

[T]he absence of documented real-life situations regarding low blood-sugar levels does not minimize safety risks and certainly doesn't minimize the concerns that the [NPS] has with regards to your ability to perform the full range of law-enforcement duties safely and efficiently .... [T]he question is whether or not [your blood-sugar fluctuations are] prima facie evidence that your condition is not static and stabilized. And right now, if you look at our regulations, your conditions, your condition is not static or stabilized.

Atkins admitted, in response, that the nature of his work prevented him from eating regularly or healthily: “[U]nfortunately doing what a lot of law-enforcement people do ... our diet's not exactly the greatest thing in the world, because if you're on patrol and you're the only one working, you can't exactly go someplace and have a decent meal. So you run through a fast-food place.”

The MRB's physician remarked that Atkins's blood sugar fluctuated wildly: “[B]etween March 14th and April 13, there were seven [on-the-job] episodes where your blood sugar was below 50[mg/dl]⁷ in that just about one-month period, seven times .... The mid morning [reading] varies from 40 [mg/dl] to 232[mg/dl]. I'll just read some of them: 132, 105, 232, 142, 84, 204, 40, 124, 77. That's a lot of variability in a short span of time.” Another MRB member noted that “[t]here has to be some point in time when those low blood-sugar levels become fewer and fewer.”

Of particular concern to the MRB was that Atkins might be unable to feel when his blood-glucose levels were perilously low:

DR. SALADINO: So you do feel it when you're 42[mg/dl] or 47[mg/dl] or ...

MR. ATKINS: Well, yeah, you can feel your system. I mean, like I said, you start to get a little shaking, you'll start to maybe just feel—I don't know how to explain it all together.

DR. SALADINO: Did you know that sometimes diabetics lose that feeling after 20 years? They stop feeling the lows until they get like very...