Kapche v. City of San Antonio

• Decision Date: 20 May 1999
• Docket Number: No. 98-50345,98-50345
• Citation: 176 F.3d 840
• Parties: 9 A.D. Cases 623 Jeff KAPCHE, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 840

176 F.3d 840

9 A.D. Cases 623

Jeff KAPCHE, Plaintiff-Appellant, v. CITY OF SAN ANTONIO, Defendant-Appellee.

No. 98-50345.

United States Court of Appeals, Fifth Circuit.

May 20, 1999.

John Wallace Griffin, Jr., Cynthia T. Sheppard, Drew B. Tipton, Houston, Marek and Griffin, Victoria, TX, for Plaintiff-Appellant.

Paula R. Dlugosz, Michael P. Hodge, San Antonio, TX, for Defendant-Appellee.

Curtis Lee Cukjati, Cacheaux, Cavazos, Newton, Martin & Cukjati, San Antonio, TX, Paula Ann Brantner, San Francisco, CA, for The National Employment Lawyers Association, Amicus Curiae.

Michael Greene, Rosenthal & Greene, Portland, OR, for The American Diabetes Association, Amicus Curiae.

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

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 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 filed a motion for reconsideration which was denied. He now seeks relief on appeal.

                Bruce Brockway, M.D.--confirmed Dr. Hernandez's initial evaluation, concluding that, because of 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
                

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 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 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 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, 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 Dallas ²³ and Daugherty v. City 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...