Daryle McNelis v. Pennsylvania Power & Light Co

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-3883
____________
DARYLE RAYMOND MCNELIS,
Appellant
v.
PENNSYLVANIA POWER & LIGHT COMPANY
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 4-13-cv-02612)
District Judge: Honorable Matthew W. Brann
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 26, 2017
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.
(Opinion Filed: August 15, 2017)
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
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
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,
1
After this case was filed, McNelis’s former employer,
misidentified in the caption as Pennsylvania Power & Light
Company, was renamed Susquehanna Nuclear, LLC.
2
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.
I
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.
A
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).
3
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.
B
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
4
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.
5
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.
II
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,
6
675 F.3d 266, 274 (3d Cir. 2012). For the sake of brevity, we
will analyze the statutes together and reference only the ADA.
III
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
7
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., 2016 WL 4535662, at *5 (S.D. Ga. Aug. 30,
2016) (“[B]ecause Plaintiff was determined not fit to return to
work during the relevant time periods, she could not perform
the essential functions of the job.”); Lute v. Dominion Nuclear
Conn., Inc., 2015 WL 1456769, at *8 (D. Conn. Mar. 30, 2015)
(“The Court finds that having [unrestricted access
authorization] was essential to [the plaintiff’s] job as a Plant
Equipment Operator in a nuclear power facility, and without it,
he was not ‘otherwise qualified to perform the essential
functions of his job . . . .’”); Wetherbee v. S. Nuclear Operating
Co., 2010 WL 11428172, at *7 (N.D. Ga. Mar. 17, 2010)
(“[A]n essential job function of the [plaintiff’s position at the
NRC-regulated plant] is that the employee filling that position
be determined to be fit for duty as required by the NRC . . . .”);
Sysko v. PPL Corp., 2009 WL 4725240, at *8 (M.D. Pa. Dec.
2, 2009) (“[A]n employee who is unable to maintain
unescorted access status is not qualified to perform the
essential functions of a position within the [NRC-regulated]
nuclear facility.”); Mathieson v. Am. Elec. Power, 2002 U.S.
Dist. LEXIS 6560, at *10 (W.D. Mich. Jan. 14, 2002) (“An
employee’s inability to satisfy [the NRC’s] legally dictated
fitness-for-duty program is ‘by its very nature an essential
function.’” (citation omitted)); McCoy v. Pa. Power and Light
Co., 933 F. Supp. 438, 444 (M.D. Pa. 1996) (“[I]t is apparent
8
as a matter of law that plaintiff is not a qualified individual with
a disability within the meaning of the ADA, since his disability
precludes him from retaining the security clearance necessary
to perform his former job.”). These decisions are based on the
well-settled proposition that “a legally-defined job
qualification is by its very nature an essential function under
[the ADA].” Brickers v. Cleveland Bd. of Educ., 145 F.3d 846,
850 (6th Cir. 1998).
We also find support in the opinions of our sister courts
of appeals that have applied the same rationale in cases raising
analogous ADA claims that implicate Department of
Transportation (DOT) regulations. For example, in Hawkins v.
Schwan’s Home Service, Inc., the Tenth Circuit rejected an
ADA claim brought by an employee who was fired for failing
a DOT-mandated medical examination. 778 F.3d 877, 895
(10th Cir. 2015). The court reasoned that the employer’s
insistence on DOT certification “stems directly from the
federal motor-safety regulations, which preclude a person from
‘driving a commercial motor vehicle unless he/she is . . .
medically certified as physically qualified to do so.’” Id.
(alterations and citations omitted). The court held that “being
DOT-certified is an automatic, binding, and utterly
unavoidable requirement”—and was thus an “essential
function” of the employee’s job. Id.; see also Williams v. J.B.
Hunt Transp., Inc., 826 F.3d 806, 812 (5th Cir. 2016) (holding
that the plaintiff “failed to establish that he was qualified for
the job in question . . . [b]ecause he lacked the DOT
certification required by federal law”); Harris v. P.A.M.
Transp., Inc., 339 F.3d 635, 639 (8th Cir. 2003) (affirming
dismissal of an ADA claim where the employer “was applying
the [DOT regulations] to which it was bound”); Bay v. Cassens
Transp. Co., 212 F.3d 969, 974 (7th Cir. 2000) (“Under
9
applicable DOT regulations, [the employer] was not allowed
to permit [the plaintiff] to resume driving until he produced a
copy of a doctor’s certificate indicating he was physically
qualified to drive, and nothing in the ADA purports to change
that obligation.” (citations omitted)).
Finally, our holding is in accord with the Supreme
Court’s decision in Albertson’s, Inc. v. Kirkingburg, 527 U.S.
555 (1999). In that case, the plaintiff was fired from his job as
a truck driver after his incurable eye disorder prevented him
from meeting DOT vision standards. Id. at 559. In ruling on the
plaintiff’s ADA claim, the Court explained that the employer
has an “unconditional obligation to follow the [DOT]
regulations and [a] consequent right to do so,” and therefore
could fire the plaintiff due to his vision issues. Id. at 570. The
Court found “crucial” to its holding the fact that Albertson’s
“was not insisting upon a job qualification merely of its own
devising,” but was complying with a regulation that was
concededly valid and “ha[d] the force of law.” Id. It deemed its
holding consistent with the structure of the ADA because,
“[w]hen Congress enacted the ADA, it recognized that federal
safety rules would limit application of the ADA as a matter of
law.” Id. at 573.2
2
Albertson’s reveals another fatal flaw in McNelis’s
cause of action. Even assuming for the sake of argument that
McNelis could demonstrate a prima facie case, compliance
with federal law provides PPL with a defense to McNelis’s
suit. As the Supreme Court recognized, an employer has a right
to “insist on” compliance with legally mandated job
requirements. Albertson’s, 527 U.S. at 571. And the
implementing regulations of the ADA provide that it is a
defense to a claim of discrimination “that a challenged action
10
McNelis makes several counterarguments, none of
which we find persuasive. First, he notes that a judgment in
favor of PPL would diminish “the protections of the ADA for
workers in sensitive positions within the nuclear industry.”
McNelis Br. 29. Contrary to McNelis’s characterization, this is
a feature—not a bug—of the nuclear regulatory scheme.
Presumably because of the sensitive nature of the work, the
Nuclear Regulatory Commission made a policy judgment that
for a limited number of jobs, nuclear power plants must screen
employees for certain traits and behaviors that may endanger
the public. See 10 C.F.R. § 26.23; 10 C.F.R. § 73.56(c); see
generally Rushton v. Neb. Pub. Power Dist., 844 F.2d 562, 565
n.5 (8th Cir. 1988) (noting that nuclear power plant employees
have diminished workplace rights because “the danger of
catastrophic loss of health and life is so great”). The NRC
regulations do not exempt individuals with disabilities, and
indeed, it would be strangely ineffective for them to do so; the
fact that a certain trait or behavior coincides with a recognized
disability does not make it any less dangerous to the public. To
the contrary, NRC regulations explicitly require nuclear power
plants to screen for traits and behaviors in a manner that in
is required or necessitated by another Federal law or
regulation, or that another Federal law or regulation prohibits
an action . . . that would otherwise be required.” 29 C.F.R.
§ 1630.15(e); see also Bay, 212 F.3d at 975 (“[The employer]
may assert [the employee’s] lack of [DOT] certification as a
valid defense to [his] ADA claim.”). To rule otherwise “would
force a Hobson’s choice” on PPL, leaving it to pick between
ADA liability on the one hand and administrative penalties on
the other. Brickers, 145 F.3d at 850.
11
other contexts may violate the ADA.3 And the premise that the
ADA applies differently to professions that implicate the
public welfare is as essential as it is unremarkable. See, e.g.,
Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir.
1999) (“Police departments place armed officers in positions
where they can do tremendous harm if they act irrationally.
Contrary to [the plaintiff’s] contention, the ADA does not,
indeed cannot, require a police department to forgo a fitness
for duty examination . . . .”).
Next, McNelis claims he should have been afforded “an
opportunity to address the erroneous perception of Dr.
Thompson and PPL.” Reply Br. 14. In fact, McNelis was given
that chance through the review procedures outlined in the NRC
regulations. See 10 C.F.R. § 73.56(l); 10 C.F.R. § 26.39.
McNelis received through the administrative process an
“impartial and independent internal management review” and
was given “an opportunity to provide additional relevant
information and an opportunity for an objective review of the
information upon which the [decision] was based.” 10 C.F.R.
§ 73.56(l). Thus, McNelis’s claim that he had “no way to
legally challenge [PPL’s] erroneous perception,” McNelis Br.
at 33, is incorrect.
3
Compare 10 C.F.R. § 73.56(e) (requiring nuclear
employees to pass a psychological assessment that screens for
“any noted psychological characteristics on the individual’s
trustworthiness and reliability”), with Olson v. Gen. Elec.
Astrospace, 101 F.3d 947, 953 n.5 (3d Cir. 1996) (noting that
the ADA generally prohibits discrimination based on “[a]ny
mental or psychological disorder, such as . . . emotional or
mental illness”).
12
To the extent McNelis argues he was entitled to more
process than that delineated by the NRC regulations, he is
again mistaken. While PPL had an “unconditional obligation
to follow the regulations,” it also had a “consequent right to do
so.” Albertson’s, 527 U.S. at 570 (emphasis added). Although
McNelis contends that PPL acted too “precipitously” in
revoking his access authorization or should have provided him
an opportunity to more “fully engage” in the review process,
Reply Br. at 13, PPL was permitted to follow the NRC
regulations that provided otherwise.
McNelis does not seriously dispute that PPL followed
the procedures outlined in the NRC regulations,4 but argues
that his termination was discriminatory because PPL typically
does not fire employees before giving them a chance to regain
access. But “the fact that certain accommodations may have
been offered . . . to some employees as a matter of good faith
4
In his reply brief, McNelis argues in passing that PPL
did not inform him of the reason he lost unrestricted access, as
required by 10 C.F.R. § 73.56(l) (“[T]he individual [must be]
informed of the grounds for the denial or unfavorable
termination” of “access authorization.”). As support for this
argument, McNelis notes that his employment termination
letter “told [him] absolutely nothing with regard to the reason
PPL fired him.” Reply Br. at 9 (emphasis omitted). McNelis
confuses termination of employment with termination of
access. Here, the regulations require the employee to have the
access termination explained, which PPL did as part of
McNelis’s review request. See App. 559 (“Reason for
Denial/Revocation of Unescorted Access Authorization: SAE
Evaluation,” “Basis for Decision: Not Fit for Duty . . . Requires
an Alcohol Assessment and Treatment Certification”).
13
does not mean that they must be extended to [each employee]
as a matter of law.” Myers v. Hose, 50 F.3d 278, 284 (4th Cir.
1995). This is true even though PPL policy generally allows
individuals to comply with treatment recommendations before
termination. See Smith v. Midland Brake, Inc., 138 F.3d 1304,
1310 (10th Cir. 1998) (“Absent proof of discrimination as
defined by the ADA, an employer’s failure to follow its own
internal policies does not in itself constitute a violation of the
ADA.”), rev’d on other grounds, 180 F.3d 1154 (10th Cir.
1999) (en banc).
Finally, McNelis asserts that a jury could have deemed
Dr. Thompson’s fitness determination erroneous. In essence,
McNelis claims PPL was not entitled to rely on Dr.
Thompson’s determination that he was not fit for duty in light
of other evidence he submitted from his personal doctors. We
disagree. The Supreme Court has indicated that in the ADA
context, a court should not “second-guess” a physician’s
determination that an employee failed to meet the regulatory
requirements of his job. Murphy v. United Parcel Serv., Inc.,
527 U.S. 516, 522 (1999). This is doubly true in the
circumstances of this case, because NRC regulations
prohibited PPL from questioning the determination of fitness
after it was made by Dr. Thompson. 10 C.F.R. § 26.189(d)
(“Neither the individual nor licensees . . . may seek a second
determination of fitness if a determination of fitness . . . has
already been performed by a qualified professional . . . .”).5
5
Because the District Court did not err when it held that
McNelis did not meet his burden of establishing a prima facie
case of discrimination, we need not consider the various issues
related to whether his firing was pretextual. See Williams v.
Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir.
14
* * *
For the reasons stated, we will affirm the judgment of
the District Court.
2004). However, we note the incoherence of McNelis’s theory
that PPL used McNelis’s fitness for duty concerns to mask that
it was firing him because it thought he used bath salts and had
psychological issues. Either of these allegedly forbidden
reasons for his termination would have been additional valid
reasons for PPL to have revoked McNelis’s plant access. See
10 C.F.R. § 26.23(b) (requiring PPL to ensure that McNelis
was not “mentally or physically impaired from any cause,
which in any way adversely affects [his] ability to safely and
competently perform [his] duties”). Thus, while McNelis may
point to disparate treatment on account of his perceived
disability, he cannot show that the disparate treatment
amounted to discrimination. See Doe v. Cty. of Centre, PA, 242
F.3d 437, 447 (3d Cir. 2001) (“[T]he ADA allows disparate
treatment in certain cases. . . . [and] recognizes that the goal of
ending disability discrimination must be balanced against the
health and safety risks that disabilities sometimes pose to
others.”).
15