Lassiter v. Reno ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALBERT LASSITER,
Plaintiff-Appellant,
v.
JANET RENO, United States Attorney
General; EDUARDO GONZALEZ,
No. 95-2058
Director, United States Marshal
Service; HELEN F. FAHEY, United
States Attorney; U.S. MARSHAL
SERVICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-94-626)
Argued: March 6, 1996
Decided: May 29, 1996
Before RUSSELL, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: John Bertram Mann, LEVIT & MANN, Richmond, Vir-
ginia, for Appellant. Nicholas S. Altimari, Assistant United States
Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Albert L. Lassiter challenges the district court's entry of summary
judgment on his disability discrimination claim in favor of Janet
Reno, Attorney General and department head of Lassiter's former
employer, the United States Marshal Service (USMS). Lassiter con-
tends that the district court erred in concluding that he had failed to
demonstrate that he was "otherwise qualified" under the Rehabilita-
tion Act of 1973 (the Rehabilitation Act), 29 U.S.C.A. §§ 791(b),
794(a) (West Supp. 1995). Because we agree with the district court
that Lassiter is unable to demonstrate that he can perform, with rea-
sonable accommodation, the essential functions of his former position
as Deputy United States Marshal, see Myers v. Hose, 50 F.3d 278,
282 (4th Cir. 1995), we affirm.
I.
Lassiter served as a deputy marshal in the USMS from 1970 until
his termination in 1992 on the ground that he was medically unfit to
perform his duties. In his final, written performance appraisal, Las-
siter's supervisors rated him as either excellent or outstanding in the
discharge of his duties.
The sequence of events that eventually led to Lassiter's termination
began in late 1990. Lassiter began to suspect that his elderly neighbor,
her grandson, and other, unidentified individuals were conspiring to
burglarize his home. Lassiter based his suspicion on a number of
occurrences, including, for example, his observation of various trucks
and cars slowing down as they passed his house and his receipt of
hang-up phone calls that Lassiter traced to relatives of his neighbor
through his caller-identification system. Lassiter contacted several
officers of the Chesterfield County Police Department (CCPD) and
expressed his concerns. In one conversation, a CCPD officer warned
2
Lassiter that he could not shoot the burglars; Lassiter responded that
if he could not, the CCPD should "[h]ave a homicide unit standing
by." (J.A. at 43.) After an investigation into Lassiter's concerns, the
CCPD concluded that no conspiracy existed.
Lassiter remained convinced that he was the target of a putative
conspiracy. To foil the alleged burglary ring, Lassiter pretended that
he was away for the Christmas holidays. When he returned from
work, Lassiter parked his car away from his home and entered his
house through the side door. To simulate absence, Lassiter did not
turn on any lights, answer the phone, pick up his mail, wash dishes,
cook food in the oven, or flush the toilets. In preparation for the
intruders, Lassiter wore his firearm in its holster, donned a bullet-
proof vest, placed duct tape on all the numbers on one phone except
nine and one so he could call the police in the dark if required, and
remained in contact with the CCPD on another phone. Lassiter noti-
fied the police dispatchers that he would be armed with a double-
barrel shotgun and a .45 caliber automatic pistol, and warned them
that the only way the burglars would remove his United States Mar-
shal's arm band would be if he were dead.
To ensure he would be alert when the burglars made their move,
Lassiter slept by day and remained awake all night. On the afternoon
of December 23, Lassiter refused to answer his door when a CCPD
officer arrived to investigate a neighbor's complaint that Lassiter was
armed and threatening to kill people. Later, in the early morning
hours of December 24, the CCPD responded to another telephone call
from Lassiter. When the officers arrived, they found Lassiter armed
with an automatic weapon, two magazine rounds, a night-vision
scope, and the bullet-proof vest. After observing the unwashed dishes,
the unflushed toilets, and firearms, the officers became concerned that
Lassiter was heavily armed and acting in an increasingly agitated
manner. The officers departed but returned after obtaining a Tempo-
rary Detention Order directing that Lassiter be committed to Charter
Westbrook Hospital for psychiatric evaluation. During his approxi-
mately three-week commitment, Lassiter continued to believe the
conspiracy existed and "cheeked" 1 some of the medication provided
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1 Lassiter pretended to swallow the medicine given to him, but spit it
out after the hospital personnel left.
3
to him because he did not trust the hospital personnel assigned to care
for him. Eventually, Lassiter concluded that the doctors, staff, and his
roommate at the hospital, members of the CCPD, and his pharmacist,
as well as his neighbors, were all involved in the conspiracy against
him.
Two weeks after his discharge from Charter Westbrook, the USMS
arranged to have Dr. Thomas Mathews examine Lassiter. Dr.
Mathews diagnosed Lassiter as suffering from delusional (paranoid)
disorder2 and opined that while Lassiter was not precluded from gen-
eral employment with the USMS, he should be deprived of his
weapon and relieved of any duties that would necessitate his carrying
a weapon. After officials from the USMS explained to Dr. Mathews
that it would be impossible to serve as a deputy marshal without car-
rying a gun, Dr. Mathews recommended that Lassiter be declared
medically unfit for duty.
After receiving the results of Dr. Mathews's examination, Lassiter
enlisted the services of three other psychiatrists to evaluate his condi-
tion. First, Dr. Melvin Stern diagnosed Lassiter as suffering from
paranoid personality disorder,3 but opined that Lassiter was not pres-
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2 The Diagnostic and Statistical Manual of Mental Disorders, third edi-
tion, revised (DSM-IIIR), defines delusional (paranoid) disorder as "the
presence of a persistent, nonbizarre delusion that is not due to any other
mental disorder." (J.A. at 197.) The persecutory type of this disorder is
described as follows:
The persecutory delusion may be simple or elaborate, and usu-
ally involves a single theme or series of connected themes, such
as being conspired against, cheated, spied upon, followed, poi-
soned or drugged, maliciously maligned, harassed, or obstructed
in the pursuit of long-term goals. Small slights may be exagger-
ated and become the focus of a delusional system. In certain
cases the focus of the delusion is some injustice that must be
remedied by legal action . . . , and the affected person often
engages in repeated attempts to obtain satisfaction by appeal to
the courts and other government agencies. People with persecu-
tory delusions are often resentful and angry, and may resort to
violence against those they believe are hurting them.
(J.A. at 198.)
3 The DSM-IIIR states that "[t]he essential feature of this disorder is a
pervasive and unwarranted tendency, beginning by early adulthood and
4
ently dangerous and "recommend[ed] that he be allowed to return to
work including having the right to bear arms in the same capacity of
Deputy U.S. Marshal that he had prior to his being hospitalized."
(J.A. at 58-59.) Second, Dr. Juliann Hanback also opined that Lassiter
had paranoid personality disorder, but recommended that Lassiter
obtain psychiatric treatment or regular psychiatric assessments before
regaining the right to own and carry firearms. Third, Dr. Paul Travis
recommended that Lassiter be evaluated by a specialist in paranoid
disorders.
After careful consideration of the reports of the examining psychia-
trists and review of the events of late 1990, officials at the USMS
decided to relieve Lassiter of his duties as a deputy marshal in May
1992. In an effort to accommodate Lassiter, the USMS attempted to
place Lassiter in an administrative position in which he would not
have to carry a firearm. However, because the search for a vacant
position within Lassiter's commuting area was fruitless, the USMS
terminated Lassiter's employment.
After the USMS terminated Lassiter's employment, Lassiter con-
sulted a fourth psychiatrist, Dr. David Daniel. Based on his examina-
tion, Dr. Daniel concluded that "Lassiter suffers from paranoid
personality disorder and has a very low potential for impulsive vio-
lence." (J.A. at 72.)
After exhausting his administrative remedies,4 Lassiter commenced
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present in a variety of contexts, to interpret the actions of people as delib-
erately demeaning or threatening." (J.A. at 202.)
4 Shortly after his termination, Lassiter appealed the USMS's decision
to the Merit Systems Protection Board (MSPB). Following a hearing, an
MSPB administrative law judge (ALJ) held that the USMS did not dis-
criminate against Lassiter in violation of the Rehabilitation Act. In par-
ticular, the ALJ accorded more weight to Dr. Mathews's testimony than
that of Lassiter's expert witnesses, who maintained that Lassiter suffered
from a paranoid personality disorder but was not delusional, because Dr.
Mathews's opinion was better supported by the narrative provided by
Lassiter to the experts and because Lassiter's experts had not examined
Lassiter until months after his hospitalization. Additionally, the ALJ held
5
this action in the United States District Court for the Eastern District
of Virginia against the USMS, the Attorney General, the United
States Attorney for the Eastern District of Virginia, and Eduardo Gon-
zalez, the Director of the USMS, alleging that his termination violated
the Rehabilitation Act and the Virginia Human Rights Act, Va. Code
Ann. §§ 2.1-714 to -725 (Michie 1995). The district court dismissed
all claims against all parties except for the Rehabilitation Act claim
against the Attorney General. The district court subsequently granted
summary judgment in favor of the Attorney General on the Rehabili-
tation Act claim, holding that Lassiter had failed to offer evidence
raising a genuine issue of material fact on the issue of Lassiter's abil-
ity to perform the essential functions of his position with or without
a reasonable accommodation for his disability.
Lassiter appeals only the district court's entry of summary judg-
ment on his Rehabilitation Act claim, contending that (1) a genuine
issue of material fact existed as to whether Lassiter could perform the
essential functions of a deputy marshal and (2) the USMS had failed
to reasonably accommodate Lassiter's disability. After briefly dis-
cussing our standard of review on summary judgment and setting
forth the framework for analyzing claims under the Rehabilitation
Act, we address Lassiter's arguments in turn.
II.
Rule 56(c) of the Federal Rules of Civil Procedure requires the dis-
trict court to enter summary judgment against a party who, "after ade-
quate time for discovery . . . fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). To prevail on a motion
_________________________________________________________________
that Lassiter had failed to show that a reasonable accommodation for his
disability existed. The MSPB affirmed the ALJ's initial ruling that Las-
siter was medically unfit for his position, and the Equal Employment
Opportunity Commission subsequently concurred with the MSPB's find-
ings. Despite these administrative adjudications, Lassiter was entitled to
a trial de novo on his discrimination claim in the district court. See
Chandler v. Roudebush, 425 U.S. 840, 863 (1976).
6
for summary judgment, the Attorney General must"show that there
is no genuine issue as to any material fact and that[she] is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(c). In evaluating
the evidence, all reasonable inferences must be construed in favor of
Lassiter. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255
(1986). However, "[w]here the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial." Matsushita Elec. Indus. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).
We review Lassiter's challenge to the district court's entry of sum-
mary judgment de novo. Harleysville Mut. Ins. Co. v. Packer, 60 F.3d
1116, 1120 (4th Cir. 1995).
Lassiter claims that he was unlawfully discharged from his position
as a deputy marshal because of his disability in violation of sections
501 and 504 of the Rehabilitation Act. See 29 U.S.C.A. §§ 791(b),
794(a).5 Section 504 provides 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 . . .
conducted by any Executive agency." 29 U.S.C.A.§ 794(a). For Las-
siter to establish a violation of section 504, he must prove: "(1) that
he has a disability; (2) that he is otherwise qualified for the employ-
ment or benefit in question; and (3) that he was excluded from the
employment or benefit due to discrimination solely on the basis of the
disability." Doe v. University of Md. Medical Sys. Corp., 50 F.3d
1261, 1265 (4th Cir. 1995).
Under the Rehabilitation Act, an individual with a disability is
defined as a person who "(i) has a physical or mental impairment
which substantially limits one or more of such person's major life
activities, (ii) has a record of such impairment, or (iii) is regarded as
having such an impairment." 29 U.S.C.A. § 706(8)(b) (West Supp.
1995). The Attorney General does not dispute that the USMS regards
Lassiter as being disabled, see Forrisi v. Bowen , 794 F.2d 931, 934
(4th Cir. 1986) (recognizing that even though the employee does not
_________________________________________________________________
5 Because Lassiter "has consistently litigated this action as a straight-
forward anti-discrimination claim cognizable under section 501 or sec-
tion 504," we shall treat it as such. See Hogarth v. Thornburgh, 833 F.
Supp. 1077, 1083 (S.D.N.Y. 1993).
7
believe that he is disabled, he is considered to be an individual with
a disability under the Rehabilitation Act if the employer regards the
employee as having a disability), nor does she contend that the USMS
terminated Lassiter for a reason other than his disability. Thus, we
focus our discussion on the second element of the test: Whether Las-
siter was otherwise qualified under the Rehabilitation Act.
A disabled person is otherwise qualified for a position if he "can
perform ``the essential functions' of the job in question." School Bd.
of Nassau County, Fla. v. Arline, 480 U.S. 273, 287 n.17 (1987). If
the disabled individual is unable to perform the essential functions of
the position, the employee's termination may nevertheless be unlaw-
ful if the employer has failed to provide a reasonable accommodation
that "would enable the handicapped person to perform those func-
tions." Id. Keeping this framework in mind, we now turn to Lassiter's
arguments.
A.
Lassiter first contends that he offered sufficient evidence in the dis-
trict court to raise a genuine issue of material fact as to whether he
is otherwise qualified under the Rehabilitation Act. To be otherwise
qualified, Lassiter must be able to perform the essential functions of
his position without "pos[ing] a significant risk to the health or safety
of others by virtue of [his] disability that cannot be eliminated by rea-
sonable accommodation." Doe, 50 F.3d at 1265. In assessing whether
an employee can perform his duties without a significant risk to the
safety of himself or others, we must consider the nature of the posi-
tion and the consequences should the employee fail to perform his
duties properly. See id. at 1265-66 (discussing risk posed by HIV-
positive surgeon); Myers, 50 F.3d at 282 (analyzing consequences if
diabetic bus driver's blood sugar rose above the proper level);
Hogarth v. Thornburgh, 833 F. Supp. 1077, 1086 (S.D.N.Y. 1993)
(stating the necessity of evaluating "the consequences of a failure to
perform and the likelihood of such a failure"). For a law enforcement
officer, the failure to perform one's duties properly can result in dra-
matic repercussions, placing others in imminent peril. See Butler v.
Thornburgh, 900 F.2d 871, 876 (5th Cir.), cert. denied, 498 U.S. 998(1990); Hogarth, 833 F. Supp. at 1087. Indeed, the USMS maintains
strict medical standards for the mental fitness of its deputy marshals,
8
requiring that they have no "history of a basic personality disorder."
(J.A. at 559.)
The parties do not dispute that carrying a firearm is an essential
function of a deputy marshal, whose duties require confrontation of
potentially hostile situations and evaluation of whether deadly force
is needed.6 Thus, we are faced with the question of whether the evi-
dence Lassiter offered was sufficient to raise a genuine issue as to
whether he would be able to perform his duties, including carrying a
firearm, without posing a significant risk to the safety of himself or
others.
In support of his assertion that a genuine issue of material fact
exists as to whether he poses a significant risk to the safety of others,
Lassiter refers us to the reports of two of his experts, Drs. Stern and
Daniel, who opine, respectively, that Lassiter should be returned to
employment in the same capacity including the right to bear a firearm
and that Lassiter has a low potential for impulsive violence. Addition-
ally, Lassiter contends that the deposition testimony of Dr. Mathews,
who declared Lassiter medically unfit for duty, represents further evi-
dence of a genuine issue of material fact. In his deposition, Dr.
Mathews answered in the negative when asked whether there was "a
reasonable likelihood that . . . Lassiter will become violent, and there-
fore, should not carry a weapon." (J.A. at 533.)
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6 The Attorney General describes the duties of a deputy marshal in the
following manner:
The duties of the DUSM position require plaintiff to investi-
gate and apprehend several types of federal fugitives, including
escapees, and bond, probation, and parole violators. In addition,
DUSM's are responsible for investigating, seizing, maintaining,
and disposing of drug-related assets seized pursuant to federal
drug and forfeiture laws. Moreover, DUSM's provide security
for judges, courtrooms, witnesses, prisoners, and juries at threat-
sensitive trials, including espionage, terrorism, and drug cases.
Deputy U.S. Marshals maintain custody of and transport danger-
ous prisoners. Finally, Deputy U.S. Marshals execute both crimi-
nal and civil federal court process.
(Appellee's Br. at 10 n.2.)
9
We cannot agree with Lassiter's contention. Upon reviewing the
opinions of Drs. Stern and Daniel and the testimony of Dr. Mathews,
it is evident that there is no genuine issue of material fact that Lassiter
cannot perform his duties without posing a significant risk to the
safety of himself or others. The opinions of Drs. Stern and Daniel and
the testimony of Dr. Mathews show only that Lassiter has a low
potential for impulsive violence, not that he does not pose a signifi-
cant risk to the safety of himself or others.
Although Dr. Stern does opine that the USMS should return Las-
siter to his duties, including carrying a firearm, Dr. Stern's report does
not represent probative evidence raising a genuine issue of material
fact because his conclusion is based not on whether Lassiter poses a
significant risk to the safety of himself or others, but rather on Dr.
Stern's belief that Lassiter is not "presently dangerous." (J.A. at 58.)
In his report, Dr. Stern diagnosed Lassiter as suffering from paranoid
personality disorder and warned that persons with this disorder are
overly suspicious, "have an expectation of being exploited or harmed
by others[,]" and "have a tendency to read hidden, demeaning or
threatening meanings into benign remarks or events." (J.A. at 58.)
Stern concluded, however, that Lassiter is not presently dangerous
because persons with paranoid personality disorder are unlikely to
"strik[e] out impulsively" in a violent manner. (J.A. at 58.)
Agreeing that Lassiter suffers from paranoid personality disorder,
Dr. Daniel also opined that Lassiter "has a very low potential for
impulsive violence." (J.A. at 72.) Similarly, however, Dr. Daniel
reported that persons with paranoid personality disorder display a
"pervasive and unwarranted tendency . . . to interpret the actions of
people as deliberately demeaning or threatening." (J.A. at 69 (internal
quotation marks omitted).) Regarding Lassiter's erratic behavior in
December 1990, Dr. Daniel further opined that Lassiter's misinterpre-
tation of the events was not a delusion, but more likely an "over-
valued idea" or an "idea[ ] of reference." (J.A. at 70 (internal quota-
tion marks omitted).) Dr. Daniel defines an over-valued idea as an
"unreasonable and sustained belief or idea" and an idea of reference
as an "idea[ ] . . . that events, objects, or other people in the person's
immediate environment have a particular and unusual meaning specif-
ically for him." (J.A. at 69-70 (internal quotation marks omitted).)
10
Dr. Mathews's admission that Lassiter was not reasonably likely to
become violent similarly does not represent probative evidence of a
genuine issue of material fact, because, again, the inquiry is not
whether Lassiter is reasonably likely to become violent, but whether
Lassiter poses a significant risk to the safety of himself or others.
When asked whether Lassiter "pose[d] a reasonable probability of
substantial harm[,]" a question whose phrasing resembles the issue at
hand, Dr. Mathews responded unequivocally in the affirmative. (J.A.
at 483.)
The opinions of Drs. Stern and Daniel and the testimony of Dr.
Mathews support the conclusion that Lassiter is unlikely to strike out
impulsively with violence; however, they do not contradict the over-
whelming evidence in the record that Lassiter, when carrying a fire-
arm in the course of his duties, poses a significant risk to the safety
of himself and others. Given the duties of a deputy marshal, a signifi-
cant risk to the safety of others can arise not only from an inclination
to strike out in violence, but also from a tendency to misperceive the
true nature of events. Cf. Hogarth, 833 F. Supp. at 1086 (noting dan-
ger posed by Federal Bureau of Investigation agent's potential mis-
perception of reality). Placed in unfamiliar circumstances that may or
may not be hostile, the deputy marshal must have the ability to decide
in an instant whether the use of deadly force is warranted. If an inno-
cent person is injured or killed because a deputy marshal "read . . .
threatening meanings into benign remarks or events[,]" (J.A. at 58,)
"it is not difficult to imagine the public outrage, let alone the potential
liability" to which the federal government would be subjected, Myers,
50 F.3d at 282 (internal quotation marks omitted).
After careful consideration of the psychiatrists' evaluations and
Lassiter's own account of the events of December 1990, the USMS
made a reasoned, informed decision to terminate Lassiter. The sole
conclusion the record supports is that public safety was the USMS's
only interest when it arrived at its decision. Under these circum-
stances, "[w]e are reluctant . . . to substitute our judgment for that of"
the USMS. Doe, 50 F.3d at 1266. Because Lassiter is unable to offer
evidence sufficient to raise a genuine issue of material fact, we hold
that the district court did not err in concluding that Lassiter is unable
to perform the essential functions of his job without posing a signifi-
cant risk to the health and safety of himself and others.
11
B.
Next, Lassiter asserts that even if he is unable to perform the essen-
tial functions of his position, his termination was unlawful because
the USMS failed to reasonably accommodate his disability. See
Arline, 480 U.S. at 287 n.17. Lassiter contends that the USMS did not
satisfy its duty of reasonable accommodation because: (1) the USMS
did not allow Lassiter to return to work and regain the privilege of
carrying a firearm after submitting to periodic psychiatric evaluations;
and (2) the USMS failed to reassign Lassiter to an administrative
position in which he would not be required to carry a firearm, or, in
the alternative, to place Lassiter on a leave of absence until an admin-
istrative position opened in the district.
Lassiter contends that the USMS should have reasonably accom-
modated his disability by allowing him to return to work and regain
the right to carry a weapon after periodic psychiatric evaluations, as
suggested by Dr. Hanback.7 Lassiter's argument fails because a dis-
abled employee must be able, with reasonable accommodation,
presently to perform the essential functions of his job. See Myers, 50
F.3d at 283. The Rehabilitation Act does not envision requiring "an
employer to wait an indefinite period for an accommodation to
achieve its intended effect." Id. Thus, Lassiter's suggestion is not a
reasonable accommodation under the Rehabilitation Act.
Finally, Lassiter asserts that the duty of reasonable accommodation
required the USMS either to transfer Lassiter to an administrative
position in which he did not have to carry a firearm, or to place Las-
siter on a leave of absence until an administrative position became
available. Again, the USMS is not required under the law to go to
these lengths to accommodate Lassiter. As a matter of reasonable
accommodation, "an employer is not required . . . to transfer or reas-
sign an employee who is not otherwise qualified for the position he
_________________________________________________________________
7 Lassiter contends that Dr. Mathews also suggested this option. How-
ever, the record reveals that although Dr. Mathews recommended that
Lassiter be allowed to return to work after periodic psychiatric evalua-
tions, Dr. Mathews never intimated that Lassiter should be allowed to
carry a firearm after he returned.
12
then holds." 8 Guillot v. Garrett, 970 F.2d 1320, 1327 (4th Cir. 1992);
see also Carter v. Tisch, 822 F.2d 465, 468 (4th Cir. 1987) ("None
of the courts which have considered the EEOC regulations defining
reasonable accommodation have concluded that an alternative assign-
ment is a required accommodation."). Therefore, we conclude that the
district court properly entered summary judgment in favor of the
Attorney General on the issue of whether a reasonable accommoda-
tion existed that would allow Lassiter to perform the essential func-
tions of his job.
III.
For the foregoing reasons, we affirm the decision of the district
court granting summary judgment in favor of the Attorney General.
AFFIRMED
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8 Effective October 1, 1992, federal agencies are required to reassign
disabled employees to suitable, funded, vacant positions located in the
same commuting area provided the reassignment does not impose undue
hardship on the operation of the program. See 29 C.F.R. § 1614.203(g)
(1995). Because the USMS terminated Lassiter in May 1992,
§ 1614.203(g) does not apply to this controversy; however, even if it did,
the record reflects that no vacant positions that qualified under the regu-
lation existed within Lassiter's commuting area.
13