McNelis v. Pa. Power & Light Co.
| Decision Date | 15 August 2017 |
| Docket Number | No. 16-3883,16-3883 |
| Citation | 867 F.3d 411 |
| Parties | Daryle Raymond MCNELIS, Appellant v. PENNSYLVANIA POWER & LIGHT COMPANY |
| Court | U.S. Court of Appeals — Third Circuit |
Ralph E. Lamar, IV, 8515 Braun Loop, Arvada, CO 80005, Marc E. Weinstein, 500 Office Center Drive, Suite 400, Fort Washington, PA 19034, Counsel for Appellant
Darren M. Creasy, A. James Johnston, Post & Schell, 1600 John F. Kennedy Boulevard, Four Penn Center, 13th Floor, Philadelphia, PA 19103, Counsel for Defendant-Appellee
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
Daryle McNelis appeals the District Court's summary judgment in favor of his former employer, PPL Susquehanna, LLC.1 McNelis worked at PPL's nuclear power plant as an armed security officer from 2009 until he was fired in 2012 after failing a fitness for duty examination. McNelis sued, claiming his termination violated the Americans with Disabilities Act. The District Court disagreed, holding that McNelis was fired because he lacked a legally mandated job requirement, namely, the unrestricted security access authorization that the United States Nuclear Regulatory Commission requires of all armed security guards. For the reasons that follow, we will affirm the judgment of the District Court.
This appeal requires us to analyze the relationship between the Americans with Disabilities Act (ADA) and the regulations promulgated by the Nuclear Regulatory Commission (NRC). We begin with the governing regulations and then turn to the facts of the case.
As the operator of a nuclear power reactor, PPL was required to comply with regulations issued by the NRC, two of which are seminal to this appeal.
First, PPL was required to implement a "fitness for duty program" to ensure that "individuals are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties." 10 C.F.R. § 26.23(b). If an employee's fitness is "questionable," the employer "shall take immediate action to prevent the individual from" continuing to perform his duties. 10 C.F.R. § 26.77(b).
PPL also was required to maintain an "access authorization program" to monitor employees who had access to sensitive areas of the plant. 10 C.F.R. § 73.56(a)–(b). Under this program, nuclear power plants must "provide high assurance" that employees "are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety or the common defense and security." 10 C.F.R. § 73.56(c). Before an employee is granted unrestricted access, he must undergo a psychological assessment that evaluates "the possible adverse impact of any noted psychological characteristics on the individual's trustworthiness and reliability." 10 C.F.R. § 73.56(e). Once granted, unrestricted access is subject to constant monitoring. Nuclear power plants must institute a "behavioral observation program" to identify aberrant behaviors. 10 C.F.R. § 73.56(f). All employees are required to report suspicious behaviors, and any report triggers a reassessment of that employee's access. 10 C.F.R. § 73.56(f)(3). If during the reassessment an official believes the employee's "trustworthiness or reliability is questionable," the official must terminate the employee's unrestricted access during the review period. Id.
PPL hired Daryle McNelis as a Nuclear Security Officer in 2009. In that role, McNelis had unrestricted access to PPL's plant and was responsible for, among other things, protecting its vital areas and preventing radiological sabotage. McNelis carried a firearm (often an AR-15) and was authorized to use deadly force.
In April 2012, McNelis experienced personal and mental health problems. McNelis was paranoid about surveillance. He believed that various items in his home (such as his children's toy cars) were covert listening devices and he told his wife he would kill whoever was following him. McNelis also had problems with alcohol and his "use of alcohol [was] an issue of contention with his wife." App. 32. Finally, a close friend and co-worker of McNelis named Kris Keefer believed McNelis had become obsessed with bath salts—a synthetic drug that affects the central nervous system. McNelis had admitted to using bath salts in the past and co-workers suspected he was doing so again.
In the midst of these troubles, McNelis's wife moved herself and the children out of the family home. That same day, local police received an anonymous 911 call warning that McNelis may "come to the schools to get his children" and "may be under the influence and possibly armed." App. 19. The school district was locked down for two hours—but the police eventually determined that McNelis never intended to go to the schools.
Two days later, McNelis agreed to meet his wife at a psychiatric facility for treatment. The treating physician's initial evaluation noted that McNelis suffered from "paranoid thoughts, ... sleeplessness, [and] questionable auditory hallucinations." App. 26–27. After a three day stay in the inpatient unit, McNelis was discharged with instructions to "[d]iscontinue or reduce the use of alcohol." App. 28.
During the events of April 2012, McNelis's friend and co-worker Keefer became concerned by McNelis's behavior. As required by NRC regulations and PPL policy, Keefer reported his concerns to a supervisor, explaining that McNelis was "emotionally erratic[,] ... not sleeping well and having illusions" about surveillance. App. 20. Keefer also opined that McNelis's behavior warranted "immediate attention." Id. Pursuant to NRC regulations, McNelis's unrestricted access was "placed on hold" pending medical clearance. App. 29.
McNelis then met with Dr. David Thompson—a third-party psychologist who performs fitness for duty examinations at approximately 20 nuclear facilities nationwide, including PPL's plant. Dr. Thompson interviewed McNelis and performed testing required by PPL policy and NRC regulations. See 10 C.F.R. §§ 26.187, 73.56(e)(6). He then issued two reports, the second of which—a Substance Abuse Expert Determination of Fitness report—stated that "McNelis is considered not fit for duty pending receipt and review of a report from the facility where he receives an alcohol assessment and possibly treatment." App. 35.
Upon learning that McNelis had been deemed not fit for duty by Dr. Thompson, PPL revoked McNelis's unescorted access authorization and terminated his employment. After his internal appeal was denied, McNelis filed this suit. The District Court granted PPL summary judgment and McNelis timely appealed.
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over McNelis's challenge to the District Court's summary judgment. Blunt v. Lower Merion Sch. Dist. , 767 F.3d 247, 265 (3d Cir. 2014). McNelis sued under the ADA, the Rehabilitation Act, and the Pennsylvania Human Relations Act, all of which are "interpreted consistently" and share "the same standard for determination of liability." Macfarlan v. Ivy Hill SNF, LLC , 675 F.3d 266, 274 (3d Cir. 2012). For the sake of brevity, we will analyze the statutes together and reference only the ADA.
McNelis claims his termination violated the ADA because "he was erroneously regarded as having a disability in the form of alcoholism, mental illness and/or illegal drug use, and that this misperception was a motivating factor in his firing." McNelis Br. 26. To establish a prima facie case under the ADA, McNelis had to establish that he "(1) has a ‘disability,’ (2) is a ‘qualified individual,’ and (3) has suffered an adverse employment action because of that disability." Turner v. Hershey Chocolate USA , 440 F.3d 604, 611 (3d Cir. 2006). The parties contend, and we agree, that this case turns on the second prong:
whether McNelis is a "qualified individual."
"A two-part test is used to determine whether someone is a qualified individual with a disability." Gaul v. Lucent Techs., Inc. , 134 F.3d 576, 580 (3d Cir. 1998) (citation omitted). First, the individual must satisfy "the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc." 29 C.F.R. Pt. 1630 (Appendix). Second, the individual must be able to "perform the essential functions of the position held or desired, with or without reasonable accommodation." Id.
Whether or not McNelis could satisfy the first part of the analysis, we agree with PPL that McNelis could not perform the "essential functions" of his job. NRC regulations require Nuclear Security Officers to be fit for duty, 10 C.F.R. § 26.4(a), and to maintain unescorted security clearance, 10 C.F.R. § 73.56(b)(1). Because McNelis did not satisfy either legally mandated requirement at the time he was fired, his claim failed as a matter of law.
Although we are the first court of appeals to address the interplay between the ADA and these NRC regulations, our opinion is supported by a broad consensus among district courts that nuclear power plant employees who have lost security clearance or have been deemed not fit for duty are not qualified employees under the ADA. See Stevens v. S. Nuclear Operating Co. , 209 F.Supp.3d 1372, 1379 (S.D. Ga. 2016) (); Lute v. Dominion Nuclear Conn., Inc. , 2015 WL 1456769, at *8 (D. Conn. Mar. 30, 2015) (); Wetherbee v. S. Nuclear...
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