David Atkins v. Ken Salazar, Secretary ( 2011 )

Case: 10-60940 Document: 00511692251 Page: 1 Date Filed: 12/12/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2011
No. 10-60940 Lyle W. Cayce
Clerk
DAVID A. ATKINS,
Plaintiff – Appellant
v.
KEN SALAZAR, SECRETARY, DEPARTMENT OF THE INTERIOR,
Defendant – Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC 1:10-CV-40
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
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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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,
1
This regulation was promulgated pursuant to 5 U.S.C. § 3301, which provides that
the President may:
(1) prescribe such regulations for the admission of individuals into the civil
service in the executive branch as will best promote the efficiency of that
service;
(2) ascertain the fitness of applicants as to age, health, character, knowledge,
and ability for the employment sought; and
(3) appoint and prescribe the duties of individuals to make inquiries for the
purpose of this section.
2
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(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
2
The regulations explain that
[a]n acceptable diagnosis [under the relevant medical standards] must include the following
information, or parts identified by the agency as necessary and relevant:
...
(e) An explanation of the impact of the medical condition on overall health and
activities, including the basis for any conclusion that restrictions or
accommodations are or are not warranted, and where they are warranted, an
explanation of their therapeutic of risk [sic] avoiding value;
(f) An explanation of the medical basis for any conclusion which indicates the
likelihood that the individual is or is not expected to suffer sudden or subtle
incapacitation by carrying out, with or without accommodation, the tasks or
duties of a specific position;
(g) Narrative explanation of the medical basis for any conclusion that the
medical condition has or has not become static or well stabilized and the
likelihood that the individual may experience sudden or subtle incapacitation
as a result of the medical condition. In this context, “static or well-stabilized
medical condition” means a medical condition which is not likely to change as
a consequence of the natural progression of the condition, specifically as a result
of the normal aging process, or in response to the work environment or the work
itself. “Subtle incapacitation” means gradual, initially imperceptible
impairment of physical or mental function whether reversible or not which is
likely to result in performance or conduct deficiencies. “Sudden incapacitation”
means abrupt onset of loss of control of physical or mental function.
...
5 C.F.R. § 339.104(e)–(g).
3
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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
4
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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
3
Neither Atkins’s vision nor asthma are at issue in the instant suit.
4
“HA1C” testing—also called “A1C” testing and “A1c” testing—refers to a blood test
that tracks the amount of glucose in blood over a two to three month period. The test is often
used to measure diabetics’ success at controlling blood-glucose levels over a period of time.
5
Atkins would later describe his duties in this time as “mainly sitting in the office
doing dispatch work and working on a patrol car. . . . [and not] doing any shift work, any night
work, anything like that.”
5
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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,
6
Atkins himself recognizes that his duties as a law enforcement park ranger involved
varied and arduous physical activities: “Patrolling the park by foot or vehicle[;] . . . ma[king]
arrests, issu[ing] tickets, . . . handl[ing] all incidents given to [him;] . . . handl[ing] Emergency
Medical Services [as a] First Responder on numerous incidents including numerous motor
vehicle accidents[; and] . . . [working] as a wild land firefighter . . . .” Atkins also recognized
that he often carried out his work alone, stating that “[a]s far as rangers go, sometimes there
will be three others on, sometimes you’ll be the only one. . . . [S]ometimes we ride together and
a lot of times we’re in cars by ourselves.”
6
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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 low?
...
DR. SALADINO: That’s what I’m worried about, that maybe you’re
not feeling these lows. Feeling twitchy; I don’t know.
The MRB’s concern was clear: Atkins might not sense the onset of an
incapacitating hypoglycemic event and, therefore, fail to take appropriate action.
7
The measurement “mg/dl” represents the number of milligrams per deciliter of glucose
in the blood. This is another measure for variations in a diabetic’s blood-glucose levels. The
United States Department of Health and Human Services has indicated that a blood-glucose
measurement below 70 mg/dl is a strong indicator of a hypoglycemia. See U.S. DEPT. HEALTH
& HUMAN SERVS., NATIONAL DIABETES INFORMATION CLEARINGHOUSE (NDIC) –
HYPOGLYCEMIA, http://diabetes.niddk.nih.gov/dm/pubs/hypoglycemia/ (“When people think
their blood glucose is too low, they should check the blood glucose level of a blood sample using
a meter. If the level is below 70 mg/dl, . . . [a] quick-fix food[] should be consumed right away
to raise blood glucose . . . .”).
7
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As the MRB explained, in such an event, the risks to the public, other NPS
employees, and Atkins himself could be serious:
One of the concerns [that NPS has with diabetic law enforcement
park rangers] is that you’ve got to be able to react and respond
appropriately in time-sensitive situations, and it requires the ability
to use good judgment. Even though you’ve got rescue meds, always
remember that there is a lag time between the time you take your
particular rescue medication and the time for that to act on your
system. So in essence, if there was a critical situation that required
your involvement and you had low blood-sugar and you took a candy
bar, it really wouldn’t be of any value. You’d pretty much be
incapacitated if there was a significant issue.
Following this hearing, on August 12, 2005, the MRB informed Atkins that
he would not be granted a third waiver.8 The MRB based its decision on several
factors:
1. That Atkins’s “diabetic condition . . . [wa]s not well
controlled.”
2. That Atkins “had several incidents of hypoglycemia,”
including seven episodes from March 14, 2005, to April 13,
2005, and eleven episodes from January 22, 2005, to February
21, 2005.
3. That despite close monitoring by his personal physician and
the use of an insulin pump, Atkins’s “diabetes [was] not static
and stable as outlined in 5 CFR [Part] 339, Medical
Qualification Determinations.”9
8
In making its determination, the MRB considered “[Atkins’s] blood glucose logs over
the last year; one exercise log; medical reports from [Atkins’s physician]; [HA1C] lab
results; . . . the specific job requirements and environmental conditions of [Atkins’s] position
at the time of the medical review; documentation submitted by [Atkins] to include [a physical
fitness exam]; [Atkins’s] testimony to the MRB; written documentation from [Atkins’s]
supervisor and others on [Atkins’s] behalf; the waiver granted to [Atkins] on July, 2002; and
the [MRB]’s knowledge of the duties of a Park Ranger.”
9
The terms “static” and “stable” have specific meanings:
In this context, “static or well-stabilized medical condition” means a medical
condition which is not likely to change as a consequence of the natural
progression of the condition, specifically as a result of the normal aging process,
or in response to the work environment or the work itself.
8
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4. That Atkins “ha[d] not been diligent in monitoring [his] blood
sugar levels . . . as required by [his] initial waiver.”
5. That Atkins’s “blood sugar fluctuations [were] largely due to
[his] failure to maintain a proper diet and nutrition as
required to control [his] diabetes,” and that while “[Atkins’s
personal physician had] hoped to stabilize [his HA1C levels
at] ‘the American Diabetes Association recommended goal for
this value [of] less than or equal to 7.0[%] and th[at this]
w[ould] be [her] personal goal for [Atkins’s] level of control,’”
“most of [Atkins’s HA1C] levels ha[d] consistently remained
above 8.0[%] and as high as 10.2[%], which demonstrate[d]
[that Atkins] ha[d] not controlled [his] diabetes.”10
6. That Atkins had failed to submit exercise logs as required by
his initial waiver.
7. That Atkins “ha[d] not provided documentation on a quarterly
basis . . . that [his] diabetic condition [was] continuing to be
controlled through use of the insulin pump on a quarterly
basis as required by [his] initial waiver.”
Following the MRB’s determination, NPS revoked Atkins’s law
enforcement commission on September 6, 2005, and on March 20, 2006, offered
him a staff ranger position (a non-law enforcement position) at the same pay
grade and duty location. Atkins accepted that offer and continues to hold this
position today.
Atkins filed a discrimination complaint challenging his transfer to staff
ranger with Interior’s Equal Employment Office on October 18, 2005, alleging
that the NPS wrongly removed him from his position because he was an insulin
dependant diabetic. Following a hearing, the Administrative Law Judge decided
that Atkins had not been discriminated against, and on July 2, 2007, Interior
issued a Final Agency Decision affirming the Administrative Law Judge’s
findings. Atkins v. Kempthorne, 353 F. App’x 934, 935–36 (5th Cir. 2009). Atkins
5 C.F.R. § 339.104(g).
10
As Interior explained in its appellate brief, “[H]A1C readings were the best available
objective evidence to determine Atkins’[s] blood sugar levels and to determine whether or not
his diabetes was under control.”
9
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appealed Interior’s decision to the Equal Employment Opportunity Commission
on August 6, 2007. After initially failing to properly exhaust his administrative
remedies, see id. at 936, Atkins later properly filed a discrimination suit against
Interior, in the District Court for the Northern District of Mississippi on
February 22, 2010. This is the case we consider.
B. The Present Case
Atkins sued Interior under the Rehabilitation Act, 29 U.S.C. § 791. The
Rehabilitation Act itself incorporates the standards of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12111 et seq., (“ADA”) for determining
whether there has been impermissible “nonaffirmative action employment
discrimination.” See 29 U.S.C. § 791(g). The ADA prohibits discrimination
against “a qualified individual on the basis of a disability 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. § 12112(a).11 An ADA claim has three components:
“[A] plaintiff must prove that 1) he has a ‘disability’; 2) he is ‘qualified’ for the
job; and 3) an adverse employment decision was made solely because of his
disability.” Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996)
(per curiam) (citing Rizzo v. Children’s World Learning Ctrs., Inc., 84 F.3d 758,
763 (5th Cir. 1996)). “An individual has a disability under the [ADA] if he or she
(1) has a physical or mental impairment that substantially limits one or more
major life activities; (2) has a record of such impairment, or (3) is regarded as
having such impairment.” Stewart v. City of Houston Police Dept., 372 F. App’x
475, 477 (5th Cir. 2010) (citations and internal footnotes omitted).
Among the various kinds of discrimination prohibited under the ADA is
11
As the events at issue in this case took place from 2000 to 2005, the 2008
Amendments to the ADA are not relevant.
10
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using qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities unless the
standard, test or other selection criteria, as used by the covered
entity, is shown to be job-related for the position in question and is
consistent with business necessity.
42 U.S.C. § 12112(b)(6).12
Atkins contended that his diabetes is a disability that “substantially limits
his major life activities of eating, caring for himself[,] and metabolizing food.”
However, despite his disability, Atkins alleged that he is a “qualified person with
a disability and has met all of the requirements of a law enforcement ranger.”
“NPS disqualified [him] because of a medical qualification standard that it used
to declare Atkins’s diabetes ‘uncontrolled’ and inconsistent with his law
enforcement duties,” and therefore his demotion was prohibited discrimination.
Atkins made two related claims in this regard. First, Atkins alleged that
Interior’s revocation of his law enforcement commission because of his diabetes
was improper because it was “done without substantial evidence or any evidence
whatsoever that would show that [Atkins] could not [meet] his essential duties
[as a park ranger].” In other words, Atkins argued that Interior demoted him
because “[Atkins] has diabetes and [Interior] acted on stereotype and speculation
instead of [Atkins]’s abilities,” an impermissible form of discrimination. Second,
Atkins alleged that Interior “regarded [Atkins] as having a disability which
substantially limits life activities . . . . [and] incorrectly assumed that with
diabetes it was impossible for [Atkins] to perform the essential functions of a law
enforcement ranger with or without reasonable accommodation.” Put differently,
Interior inaccurately “perceived [Atkins’s] diabetes as being uncontrolled and a
12
“Qualification standards means the personal and professional attributes including
the skill, experience, education, physical, medical, safety and other requirements established
by a covered entity as requirements which an individual must meet in order to be eligible for
the position held or desired.” 29 C.F.R. § 1630.2(q).
11
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direct threat to himself or others,” due to a “qualification standard that screens
out those with diabetes regardless of how qualified they are to perform the job
[in question].”
In response to Atkins’s complaint, Interior filed a pre-answer motion to
dismiss or for summary judgment, in the alternative, with several attached
documents. Interior made several counter-arguments. First, Interior argued that
Atkins was not disabled because he “does not have an impairment that affects
a major life activity such as performing manual tasks, walking, seeing, hearing,
[etc.] . . . .” Second, Interior contended that Atkins was not perceived as disabled
by NPS since “none of his supervisors regard[ed] him as disabled.” Third,
Interior asserted that Interior “provided legitimate[,] nondiscriminatory reasons
for its actions . . . [that Atkins] cannot show . . . are pretext.” Namely, NPS had
a “legitimate, nondiscriminatory” interest in “the safety of the public and its
workers.”13
In his response to Interior’s motion, Atkins argued that he did have a
“physical impairment, diabetes, that ‘substantially limits several [major] life
activities, including eating for himself and metabolizing food.’” Atkins also
contended that Interior had misunderstood his claim: “[T]his is not a burden
case; Atkins’s claims arise under [the Rehabilitation Act].” Accordingly, Atkins
argued, NPS’s “adoption of a diabetes qualification was not . . . subject to . . .
McDonnell Douglas proof that the standards were a pretext for discrimination.”
Rather, “when a qualification standard screens out people who are . . . disab[led],
the plain language of the ADA require[s] the defendant . . . to plead and prove
as an affirmative defense that its qualification was job-related and consistent
with business necessity.” See 42 U.S.C. § 12113(a). Thus, Atkins asserted that
13
While Interior does not directly cite McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), the references to a “legitimate, nondiscriminatory reason” for Atkins’s demotion and
Atkins’s inability to show a pretext for NPS’s decision are part of the McDonnell Douglas
framework for analyzing discrimination claims. See id. at 802–03.
12
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Interior, by failing to understand his argument, “ha[d] not presented and argued
any evidence relevant to the . . . issues of job relatedness and business necessity,”
a proper affirmative defense to a Rehabilitation Act claim. Atkins also noted that
Interior’s reference to Atkins’s purported inability to do his job safely indirectly
invoked a second affirmative defense under the ADA, that “‘a[] [disabled]
individual shall not pose a direct threat to the health or safety of individuals in
the workplace.’” See 42 U.S.C. § 12113(b). Atkins concluded that because Interior
had the “burden of proceeding with evidence” under these affirmative defenses
and had not done so, neither dismissal of his claim nor summary judgment was
proper.
Interior responded to Atkins’s arguments by directly stating that Atkins
was a “direct threat to himself, fellow officers, and the public.” After Interior
submitted this brief, Atkins requested leave to file a sur-reply since “[Interior]
ha[d] improperly raised in [its] reply brief a significant new basis for summary
judgment against [Atkins]: the affirmative defense that the adverse action
against [Atkins] was based on Atkin’s being a direct threat to himself, his co-
workers and the public.” The motion was granted and both Atkins and Interior
exchanged further briefs which dealt with the direct threat defense and the
business necessity defense to a lesser extent.
After both sides submitted these various briefs, the district court went on
to consider Interior’s original motion to dismiss and its attached exhibits.
Following Federal Rule of Civil Procedure 12(d), the district court treated the
motion to dismiss as a motion for summary judgment. See Atkins v. Salazar, No.
1:10CV40-SA-JAD, 2010 WL 3937960, at *3 (N.D. Miss., Oct. 5, 2010); see
also Fed. R. Civ. P. 12(d), 56(c). The district court found that “there [wa]s a
genuine issue of material fact as to whether [Atkins] is substantially limited in
the major life activity of eating such that he may be disabled under the
Rehabilitation Act.” Id. at *4.
13
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The district court then turned to the question of whether the NPS
guidelines were “a qualification standard that screens out or tends to screen out
disabled persons,” noting that the ADA, and therefore the Rehabilitation Act,
affords “employer[s] an affirmative business-necessity defense to claims
challenging the application of an otherwise problematic standard.” Id. at *5.
Reviewing the evidence, the district court found that “[the NPS medical]
standard [under which Atkins was demoted] was not created arbitrarily, but
rather was based upon evidence of a safety risk posed by hypoglycemia in insulin
dependent diabetics, a risk which prevents the effective functioning of a law
enforcement Park Ranger.” Id. at *7. The district court then granted summary
judgment for Interior on the business necessity defense, concluding that NPS’s
“Medical Standards medically disqualifying those with uncontrolled
insulin-dependent diabetes are job-related and consistent with [the] business
necessity [defense].” Id. Atkins appeals the district court’s grant of summary
judgment.14
Atkins appeals the district court’s grant of summary judgment to Interior
on two bases. First, Atkins argues that the district court’s grant of summary
judgment for Interior sua sponte was improper because it was based on the
business necessity defense that, Atkins claims, Interior failed to present
evidence on or arguments for in its motion for summary judgment. Atkins argues
that the district court failed to notify the parties of its decision to rely on that
14
In his appellate brief, Atkins states that “some language in the district court’s opinion
suggests that it was also concerned with whether Mr. Atkins posed a direct threat,”
referencing the “direct threat” affirmative defense. In particular, Atkins points to the district
court’s statement that “the law does not require NPS to put the lives of Atkins, his fellow Park
Rangers, and the citizens they serve at risk by taking the chance that he will not experience
a hypoglycemic episode on the job.” Atkins, 2010 WL 3937960, at *7. This language, however,
is ambiguous and does not directly reference the direct threat affirmative defense. Accordingly,
we do not consider the direct threat defense on appeal, concluding that the district court based
its grant of summary judgment on business necessity alone.
14
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defense. Second, Atkins contends that Interior’s evidence in support of its motion
does not support granting summary judgment on the business necessity defense.
II. DISCUSSION
We review grants of summary judgment de novo. Kemp v. Holder, 610
F.3d 231, 234 (5th Cir. 2010) (citing LeMaire v. La. Dep’t of Transp. & Dev., 480
F.3d 383, 386 (5th Cir. 2007)). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is no
genuine issue for trial “[i]f the record, taken as a whole, could not lead a rational
trier of fact to find for the non-moving party.” Kipps v. Caillier, 197 F.3d 765,
768 (5th Cir. 1999). We consider the facts and evidence presented in the light
most favorable to the non-moving party, which is Atkins in this case. Breaux v.
Halliburton Energy Servs., 562 F.3d 358, 364 (5th Cir. 2009).
“[D]istrict courts are widely acknowledged to possess the power to enter
summary judgments sua sponte, so long as the losing party was on notice that
she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477
U.S. 317, 326 (1986). We review for harmless error a district court’s improper
entry of summary judgment sua sponte without notice. O’Hara v. Gen. Motors
Corp., 508 F.3d 753, 764 (5th Cir. 2007); see also Washington v. Resolution Trust
Co., 68 F.3d 935 (5th Cir. 1995). A district court’s grant of summary judgment
sua sponte is “considered harmless if the nonmovant has no additional evidence
or if all of the nonmovant’s additional evidence is reviewed by the appellate court
and none of the evidence presents a genuine issue of material fact.” Leatherman
v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1398
(5th Cir. 1994) (emphasis omitted). Consequently, even if the district court
wrongly granted summary judgment to Interior—that is, without notice on a
basis not argued by Interior—such error may be harmless if the record is
adequately developed to support a summary judgment decision.
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No. 10-60940
A. The District Court’s Grant of Summary Judgment Sua Sponte
We first address Atkins’s contention that the district court wrongly
granted summary judgment sua sponte to Interior on the basis of the business
necessity defense.15 Put simply, “[s]ummary judgment is improper if ‘[t]here was
no reason for the [nonmoving party] to suspect that the court was about to rule
on the motion.’” Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp.,
992 F.2d 1398, 1402 (5th Cir. 1993) (quoting Kibort v. Hampton, 538 F.2d 90, 91
(5th Cir. 1976)). Under this standard, “we have vacated summary judgements
[sic] and remanded for further proceedings where the district court provided no
notice prior to granting summary judgment sua sponte, even where summary
judgment may have been appropriate on the merits.” Leatherman, 28 F.3d at
1398.16
15
Federal Rule of Civil Procedure 56(f) was amended on April 28, 2010, with an
effective date of December 1, 2010 (after the district court’s decision on October 5, 2010), to
provide that a district court may grant a motion for summary judgment “on grounds not raised
by a party,” if the court has given the parties “notice and a reasonable time to respond.” Fed.
R. Civ. P. 56(f). The advisory committee notes explain that this modification “brings into Rule
56[’s] text a number of related procedures that have grown up in practice.” Prior to this
addition, the general rule was that a district court was required to give ten days’ notice prior
to granting summary judgment on a basis not urged in a pending summary judgment motion.
See, e.g., Judwin Props., Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 436–37 (5th Cir. 1992). This
previous rule was grounded in a strict reading of the text of the pre-2009 version of Federal
Rule 56(c), which provided that the nonmoving party must be served with a summary
judgment motion at least ten days prior to the time fixed for the hearing, so as to afford the
nonmoving party “an opportunity to respond and to develop the record in opposition to
requested summary judgment.” John Deere Co. v. Am. Nat’l Bank, Stafford, 809 F.2d 1190,
1192 & n.2 (5th Cir. 1987).
16
The impetus for the requirement of notice is that nonmovants must be “on notice to
present [relevant] arguments . . . in their response[s] to [movants’s] summary judgment
motion[s], [otherwise] . . . the court [will] not have the benefit of the parties’ arguments.”
Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007). The key is that “the basis
on which the motion is granted . . . [must be] raised in a manner sufficient to make the
nonmoving party aware that failure to present evidence on the issue could be grounds for
summary judgment.” Loughman v. Sw. Bell Tel. Co., 131 F.3d 140, 1997 WL 759294, at *3 (5th
Cir. Oct. 28, 1997) (per curiam).
16
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No. 10-60940
Atkins’s basic argument against the district court’s grant of summary
judgment sua sponte is that Interior never argued the business necessity defense
in its initial briefing in support of summary judgment. Rather, Atkins contends,
Interior argued that Atkins’s inability to meet the NPS’s medical standards was
a legitimate, nondiscriminatory reason for his dismissal under the burden-
shifting standard of McDonnell Douglas. As Atkins argued in his response to
Interior’s motion for summary judgment, when “the evidence establishes that an
employer openly discriminates against an individual it is not necessary to apply
the mechanical formula of McDonnell Douglas to establish an inference of
discrimination.” Rizzo, 84 F.3d at 762 (quoting Moore v. U.S.D.A., 55 F.3d 991,
995 (5th Cir. 1995)); see also Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 121 (1985) (“[T]he McDonnell Douglas test is inapplicable where the
plaintiff presents direct evidence of discrimination.”).17 Since Interior provided
no other arguments in support of its position, Atkins concludes that the district
court incorrectly granted summary judgment sua sponte without notice on a
legal basis and facts different from those argued by Interior, effectively
preventing him from addressing the business necessity defense.
Atkins’s argument is unavailing. First, while Interior recognizes on appeal
that it failed to raise the affirmative defense of business necessity in its opening
brief, Atkins himself raised the business necessity defense in his summary
judgment response brief:
[T]he defendant’s adoption of a diabetes qualification standard was
not a business decision entitled to the Court’s deference subject to
17
We observe that Atkins’s argument in this regard is mistaken. Interior initially
defended by arguing that Atkins was not disabled because of his diabetes. Accordingly, under
the McDonnell Douglas framework, there was no direct evidence that Atkins was actually
dismissed because of a disability. Assuming arguendo that Atkins was able to make out a
prima facie case of discrimination, Interior’s burden in response would be “to articulate some
legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411
U.S. at 802.
17
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No. 10-60940
Atkins’s McDonnell Douglas proof that the standards were a pretext
for discrimination. On the contrary, whenever a qualification
standard screens out people who are or tend to have a disability, the
plain language of the ADA requires the defendant (if it seeks to
avoid liability) to plead and prove, as an affirmative defense, that its
qualification standard was job-related and consistent with business
necessity.
In that brief, Atkins further explained that “Interior ha[d] not presented and
argued any evidence relevant to the . . . issues of job relatedness and business
necessity.” Atkins went on to discuss the business necessity defense for several
pages. He concluded that if “NPS chooses to defend this case on the basis of
business necessity it has the burden of proceeding with evidence, not Atkins.” All
this suggests that Atkins was aware of the business necessity defense and
argued against it despite Interior’s failure to raise the defense in its opening
brief.
Moreover, Interior made repeated reference to facts relevant to the
business necessity defense in its opening brief. For example, Interior explained
that NPS’s “legitimate, nondiscriminatory reason” for requiring medical
standards and demoting Atkins “is the safety of the public and its workers. By
its very nature, law enforcement work is unpredictable and sometimes
dangerous. Any condition that can quickly render a law enforcement officer
confused or unconscious puts that officer, fellow officers, and the public in
danger.” Interior further argued that because “[Atkins]’s uncontrolled diabetes
[could] affect attention, concentration, thinking, judgment, decision making,
reaction time, hand-eye coordination, cause confusion, irritability, and rapid
changes in level of consciousness, he clearly posed a safety threat in a potentially
arduous and dangerous law enforcement assignment.” Thus, Interior asserted,
NPS’s demotion of Atkins was a “good faith effort[] to follow their medical
standards that applied to all Park Rangers in law enforcement positions with
arduous duties,” and these standards were “implemented to protect employees,
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No. 10-60940
[Atkins]’s co-workers, the general public and [Atkins] himself.” Such facts, as
well as any other evidence in the record, could be considered by the district court
when making its summary judgment determination. See United States v.
Houston Pipeline Co., 37 F.3d 224, 227 (“[T]he district judge is not compelled to
limit the basis for summary judgment to those facts listed in the motion for
summary judgment.”) (quoting Daniels v. Morris, 746 F.2d 271, 276 (5th Cir.
1984)); see also Cripe, 261 F.3d at 886 n.9 (“Although the [defendant in this ADA
suit] has mislabeled its argument and identified the wrong standard, such error
does not cause us to hold that it waived the ‘business necessity’ defense. The
[defendant] argued the relevant facts before the district court; that sufficiently
put the plaintiffs and the court on notice of the actual issue the defendant should
have specified.”).
Given that Interior raised the business necessity defense in its reply brief
to Atkins’s summary judgment response brief, there may be concerns that Atkins
did not have the opportunity to present either evidence or arguments in response
to Interior’s argument—that Interior would effectively have the final word on
the business necessity defense. See Loughman, 1997 WL 759294, at *3–4
(reversing sua sponte grant of summary judgment on grounds that plaintiff
failed to show an adverse employment action under the ADA when defendant
argued in its summary judgment brief that plaintiff was not a “qualified
individual with a disability” and raised the failure-of-proof argument only its
reply brief).18 The concern is inapposite in this case. Atkins filed a sur-reply in
18
Cf. O’Hara v. Gen. Motors Corp., 508 F.3d 753, 763–64 (5th Cir. 2007) (“[W]e note
that GM [General Motors] did not move for summary judgment on either [of two of the
O’Haras’] claims. The O’Haras argue that the district court erred by granting summary
judgment on these claims sua sponte without giving them . . . notice . . . . We reject this
argument because this Circuit recognizes a harmless error exception to the ten day notice
rule. . . . Any error by the district court in considering the O’Haras’ additional claims on
summary judgment was harmless. The O’Haras placed these claims at issue by raising them
in their January 2006 reply brief to GM’s motion for summary judgment, to which they
attached a 500-page appendix. They re-asserted these claims in their sur-reply brief in March
19
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No. 10-60940
which he reiterated that “NPS could have tried to mount a defense against
[Atkins’s] § 12112(b)(6) claim with evidence of job relatedness and business
necessity under § 12113(a) . . . but NPS did not.”
In sum, Atkins raised the business necessity himself in his reply brief and
later elaborated upon it in his sur-reply. Whether or not he had formal notice
from the district court, Atkins was aware that the defense was at play and had
a full opportunity to argue against it and present whatever relevant evidence he
had. Notice from the district court that it intended to rely on the affirmative
defenses would have made no difference to Atkins’s briefing and so the lack of
notice caused Atkins no harm. Moreover, a sua sponte grant of summary
judgment without notice is proper “if all of the nonmovant’s additional evidence
is reviewed by the appellate court and none of the evidence presents a genuine
issue of material fact,” Leatherman, 28 F.3d at 1398. As we discuss in the next
section, we also hold that Interior was able to establish the business necessity
defense. We, therefore, hold that the district court did not err in considering the
business necessity defense in spite of its lack of notice to the parties when
granting summary judgment and any error it may have made was harmless.
B. The Business Necessity Defense
We now arrive at the second issue, whether the district court’s decision to
grant summary judgment on the business necessity defense was correct. We hold
that the district court’s grant of summary judgment in favor of Interior on the
basis of the business necessity defense was correct.
Section 12112(b)(6) of the ADA creates an affirmative defense for
qualification standards shown to be “job-related for the position in question and
2006, which was filed with a 400-page appendix. Under these circumstances, the O’Haras were
afforded an adequate opportunity to present the evidence supporting their claims and . . .
additional . . . notice would not have served any valid purpose.”)
20
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No. 10-60940
[] consistent with business necessity.” The ADA further explains this defense as
follows:
It may be a defense to a charge of discrimination under this chapter
that an alleged application of qualification standards, tests, or
selection criteria that screen out or tend to screen out or otherwise
deny a job or benefit 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, as required under this subchapter.
42 U.S.C. § 12113(a); cf. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78 (2002)
(explaining that sections 12112(b)(6) and 12113 create an affirmative defense for
standards shown to be job-related for the position in question and consistent
with business necessity). “Once an employee shows that a qualification standard
tends to screen out an individual with a disability, the employer shoulders the
burden of proving that the challenged standard is job-related and consistent
with business necessity.” Rohr v. Salt River Project Agric. Imp. and Power Dist.,
555 F.3d 850, 862 (9th Cir. 2009); cf. Rizzo, 213 F.3d at 218 (“[Under the ADA,]
it is the employee’s burden to prove that he is a qualified individual with a
disability . . . , and it is the employer’s burden to establish [an affirmative
defense].”).
To show a business necessity defense, a defendant must prove by a
preponderance of the evidence that its qualification standards are: (1) uniformly
applied; (2) job-related for the position in question; (3) consistent with business
necessity; and (4) cannot be met by a person with plaintiff’s disability even with
a reasonable accommodation. See, e.g., Fifth Circuit Pattern Jury Instructions
11.7.4. For a qualification to be “job-related,” “the employer must demonstrate
that the qualification standard is necessary and related to ‘the specific skills and
physical requirements of the sought-after position.’” Cripe v. City of San Jose,
261 F.3d 877, 890 (9th Cir. 2001) (quoting Belk v. Sw. Bell Tel. Co., 194 F.3d 946,
951 (8th Cir.1999)). Similarly, for a qualification standard to be “consistent with
21
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No. 10-60940
business necessity,” the employer must show that it “substantially promote[s]”
the business’s needs. Bates v. United Parcel Service, Inc., 511 F.3d 974, 996 (9th
Cir. 2007) (en banc) (quoting Cripe, 261 F.3d at 890). We have stated, concerning
safety-based qualification standards, that
[i]n evaluating whether the risks addressed by a safety-based
qualification standard constitute a business necessity, the court
should take into account the magnitude of possible harm as well as
the probability of occurrence. The acceptable probability of an
incident will vary with the potential hazard posed by the particular
position: a probability that might be tolerable in an ordinary job
might be intolerable for a position involving atomic reactors, for
example. In short, the probability of the occurrence is discounted by
the magnitude of its consequences.
E.E.O.C. v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000).
The record before us strongly supports a finding of business necessity on
the part of Interior. The NPS Standards are clearly job-related for a park ranger.
Detterline v. Salazar, 320 F. App’x 853, 858 (10th Cir. 2009) (noting that “the
NPS requirements are reasonable and appropriate because Law Enforcement
Park Rangers are subject to physical demands that might not be applicable to
other NPS employment positions”). The Standards “are designed to ensure that
employees performing law enforcement are physically able to perform that duty
and that their performance does not constitute a threat to the health and well
being of themselves, their fellow employees, and park visitors.” (emphasis
added). Atkins himself acknowledged that he was responsible for a range of
physically challenging and often isolated activities: “Patrolling the park by foot
or vehicle[,] . . . ma[king] arrests, issu[ing] tickets, . . . handl[ing] all incidents
given to [him,] . . . handl[ing] Emergency Medical Services [as a] First Responder
on numerous incidents including numerous motor vehicle accidents[, and] . . .
[working] as a wild land firefighter . . . .”
The specific Standard under which Atkins was transferred is congruent
with NPS’s legitimate concern with ensuring the safety of the public and its
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No. 10-60940
employees, focusing on diabetes’s propensity to “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,” all impediments to safely performing the work of a park ranger. It is
clear, then, that the Standard’s focus on the physical consequences of
uncontrolled diabetes was “related to the specific skills and requirements” of
being a park ranger and, therefore, job-related. Cripe, 261 F.3d at 890 (internal
quotation marks and citation omitted).
The Standards also “substantially promote[d]” NPS’s needs, “consistent
with business necessity.” Bates, 511 F.3d at 996. As noted above, the Standards
are “designed to ensure that employees performing law enforcement are
physically able to perform that duty and that their performance does not
constitute a threat to the health and well being of themselves, their fellow
employees, and park visitors.” Moreover, as the MRB explained, hypoglycemic
events may have serious consequences for a law enforcement officer:
One of the concerns [that NPS has with diabetic park rangers] is
that you’ve got to be able to react and respond appropriately in time-
sensitive situations, and it requires the ability to use good
judgment. Even though you’ve got rescue meds, always remember
that there is a lag time between the time you take your particular
rescue medication and the time for that to act on your system. So in
essence, if there was a critical situation that required your
involvement and you had low blood-sugar and you took a candy bar,
it really wouldn’t be of any value. You’d pretty much be
incapacitated if there was a significant issue.
NPS is not required to wait until after there is an emergency to take action
protective of the public and its employees.19
19
See, e.g., Wilkerson v. Shinseki, 606 F.3d 1256, 1264–65 (10th Cir. 2010) (“As long as
the need to perform in an emergency is a realistic component of the job, the employer should
be able to ‘establish reasonable physical qualifications’ to ensure that an emergency situation
can be dealt with safely and efficiently by the employee, especially in situations . . . where the
physical safety of others may be at risk.”) (citing Se. Cmty. Coll. v. Davis, 442 U.S. 397, 414
23
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No. 10-60940
That Atkins did not experience an on-the-job incident is fortunate, but
does not affect our conclusion. Other circuits, in the context of uncontrolled
diabetes, have “recognized that where the [diabetic]’s medical condition is
uncontrolled, of an unlimited duration, and capable of causing serious harm,
injury may be considered likely to occur,” even without evidence of prior
incidents on the job. Cf. Darnell v. Thermafiber, Inc., 417 F.3d 657, 662 (7th Cir.
2005) (“[Diabetic plaintiff] argues that the fact that he worked at the plant for
10 months without experiencing an episode makes it doubtful that an injury is
likely to occur. However, an employee with a health condition who has
experienced no on-the-job episodes can still pose a direct threat to workplace
safety.”). As we noted above, “the probability of the occurrence is discounted by
the magnitude of its consequences.” See Exxon Corp., 203 F.3d at 875. The
consequences of Atkins experiencing hypoglycemia while carrying out a
dangerous arrest, responding to a medical emergency, or fighting a fire are
sufficiently large to justify NPS’s revocation of his law enforcement condition on
the basis of even a small risk of hypoglycemia.
NPS did not reach the conclusion that demoting Atkins was a business
necessity haphazardly; it followed a uniform pattern application. The Standards
rely on “[i]ndividualized assessments [to] be made on a case-by-case basis.” This
is the kind of analysis we have required in other cases: “‘An individualized
assessment of the effect of an impairment is particularly necessary when the
impairment is one whose symptoms vary widely from person to person,’”
Rodriguez v. ConAgra Grocery Pros. Co., 436 F.3d 468, 482 (5th Cir. 2006)
(quoting Toyota Motor Mfg. Ky. Inc. v. Williams, 534 U.S. 184, 199 (2002)), and
this assessment must be linked to the employee’s “ability to perform the
essential functions of [the job].” Kapche v. City of San Antonio, 304 F.3d 493, 499
(1979)).
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No. 10-60940
(5th Cir. 2002).
Notably, NPS has not sought simply to exclude diabetics from serving as
park rangers. See Kapche, 304 F.3d at 500 (holding that summary
disqualification of police officer because of diabetic status was improper and that
an “individualized assessment of an [applicant]’s present ability to safely
perform the essential functions of [a] police officer is required”). Rather, as the
Manager of NPS’s Medical Standards Program explained, for park rangers,
“diabetes in and of itself is not nor has it ever been considered a disqualifying
condition. Indeed, several Park Rangers who are Type 1 Insulin Dependent
diabetics are medically qualified to perform their law enforcement duties.”
Rather, the Standards are concerned with the “safety and health risks [posed by]
Park Rangers whose diabetes is not controlled or unstable.” Park rangers with
diabetes who are medically qualified for duty have “the ability to stabilize their
blood sugar at acceptable levels.” Park rangers like Atkins, however, “whose
particular medical conditions are not under control[,] . . . have been determined
not to be medically qualified to perform law enforcement duties.”
In determining, after two prior assessments, that “Atkins failed to meet
the medical requirements imposed by 5 C.F.R. Part 339 on Park Rangers” in his
third review, NPS relied on a wide range of medical and other data, collected
over the course of a year. The MRB specifically found that Atkins had been
routinely experiencing hypoglycemic events during his work as a park ranger,
including seven events in one month-long period and eleven events during
another. Indeed, the physician on the MRB specifically remarked that Atkins’s
blood-glucose levels fluctuated wildly even during shorter periods of time. The
record indicates that there was a legitimate concern that Atkins might be unable
to even sense the approach of a hypoglycemic episode and therefore unable to
prevent it. Moreover, the actual work of a park ranger in rural Mississippi, with
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No. 10-60940
its long hours, unpredictable schedule, and absence of suitable dietary options,
left Atkins especially vulnerable to a hypoglycemic episode.
Atkins’s personal efforts to control his diabetes offered little solace, either.
“[Atkins’s personal physician had] hoped to stabilize [his HA1C levels at] ‘the
American Diabetes Association recommended goal for this value [of] less than
or equal to 7.0[%] and th[at this] w[ould] be [her] personal goal for [Atkins's]
level of control.’” But “most of [Atkins’s HA1C] levels ha[d] consistently
remained above 8.0[%] and as high as 10.2[%], demonstrat[ing] [that Atkins]
ha[d] not controlled [his] diabetes.”
Atkins’s argument that a “uniform application” demands that “[Interior]
needed to come forward with . . . evidence of symptoms marking the point at
which it would ordinarily determine that metabolic dysfunction was likely to
have adverse effects on safety and efficiency, and evidence that [Interior] applied
that cut-off point” is unpersuasive. Atkins cites no statutory, regulatory, or case
authority for this proposition. Interior was allowed to make a holistic
determination, based on medical evidence substantial in amount and
significance, that Atkins’s fluctuating blood-glucose levels posed a significant
risk to the public, other NPS employees, and Atkins himself. Indeed, Atkins
received, and failed, three individualized assessments consistent with Interior’s
regulatory requirements.
Finally, no reasonable accommodation would cure the problems posed by
a park ranger with “uncontrolled” diabetes like Atkins, at least not without
inflicting “undue hardship” on NPS. See Bates, 511 F.3d at 996–97.20 In spite of
20
The ADA states that
‘reasonable accommodation’ may include . . . job restructuring, part-time or
modified work schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate adjustment or modifications
of examinations, training materials or policies, the provision of qualified readers
or interpreters, and other similar accommodations for individuals with
disabilities.
26
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No. 10-60940
two previous waivers with specific accommodations, instructions, and
benchmarks, Atkins was unable to mitigate his fluctuating blood-glucose levels.
NPS was rightly concerned that there was a significant “likelihood that [Atkins
might] experience sudden or subtle incapacitation as a result of [his] medical
condition,” indicating that his diabetic condition was neither “static or well
stabilized ,” 5 C.F.R. § 339.104(g), the key requirement behind his previous two
waivers.
In conclusion, then, the record supports the district court’s conclusion that
there was no genuine issue of material fact regarding the business necessity
defense and its grant of summary judgment in favor of Interior was proper.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in favor of the Department of the Interior. All pending
motions are DENIED.
42 U.S.C. § 12111(9).
27