	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________________
No. 98-50290
_______________________________________
THOMAS R. GONZALES,
Plaintiff-Appellant,
versus
CITY OF NEW BRAUNFELS, Texas, Acting by
and through the New Braunfels Police Department,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
May 20, 1999
Before JOLLY, WIENER, and PARKER, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Thomas Gonzales appeals the district
court's grant of summary judgment dismissing his employment
discrimination claims against the City of New Braunfels on the
alternative grounds that Gonzales either (1) is not disabled or (2)
is not qualified to perform the essential functions of a police
officer, with or without accommodation. Following a de novo review
of the record, we affirm.
I.
FACTS AND PROCEEDINGS

Gonzales was hired as an officer with the City of New Braunfels
Police Department ("NBPD" or the "department") in April 1982.
Approximately two years later, in May 1984, he was diagnosed with
insulin-dependent diabetes mellitus. Despite this diagnosis,
Gonzales remained with the force for the next ten years,
successfully performing all of the duties of his job. During the
winter of 1995 and the fall of 1996, however, Gonzales failed his
routine firearms requalification test1 and allegedly failed his
driving requalification test as well.2 Pursuant to the department's
written operating procedures, Police Chief Ray Douglas initiated a
disability investigation, a part of which required Gonzales to
undergo a physical examination. Based on an individualized
assessment of Gonzales's condition, Bill Davis, M.D. determined that
Gonzales suffered from severe diabetic neuropathy. This condition,
concluded Dr. Davis, caused Gonzales to experience dexterity problems
in his hands and numbness in his feet, limiting his ability to handle
firearms safely and drive vehicles to police specifications. In
March 1996, after receiving Dr. Davis's report, the department placed
Gonzales on sick leave for six months, at the end of which time he
was required by the department to take early medical retirement.
1The record indicates that Gonzales experienced difficulties
reloading and clearing malfunctions with his firearm.
2Although it is unclear from the record whether Gonzales
passed or failed the driving requalification, it appears, at the
very least, that he had difficulty with certain components of the
test, including (1) completion of the three-lane decision test, and
(2) completion of the driving course in the minimum required time.
2

Gonzales filed a complaint with the EEOC and was issued a
right-to-sue letter. Thereafter, Gonzales timely filed this action
against the department in federal district court, alleging violations
of the Americans with Disabilities Act ("ADA" or the "Act"). In
response, the department filed a motion for summary judgment which,
as noted above, the district court granted on the alternative
grounds that Gonzales either (1) is not disabled or (2) is not
qualified to perform the essential functions of a police officer,
with or without an accommodation. Gonzales now appeals, seeking
reversal.
II.
ANALYSIS
A.
Standard of Review
We review a grant of summary judgment de novo, applying the
same standard as the district court.3 Summary judgment is
appropriate when the evidence, viewed in the light most favorable
to the nonmoving party, presents no genuine issue of material fact
and shows that the moving party is entitled to judgment as a matter
of law.4
B.
The ADA
The ADA makes it unlawful for an employer to discriminate
3Melton v. Teacher's Ins. & Annuity Ass'n of America, 114 F.3d
557, 559 (5th Cir.1997).
4River Prod. Co., Inc. v. Baker Hughes Prod. Tools, Inc., 98
F.3d 857, 859 (5th Cir.1996) (citing FED.R.CIV.P. 56(c)).
3

against an employee who is a "qualified individual with a
disability" because of that individual's disability.5 To prevail
on a claim under the Act, a plaintiff must prove that (1) he has a
"disability," (2) he is "qualified" for the position in which he
seeks employment, and (3) he was "discriminated" against solely
because of his disability.6
1.
Insulin Dependent Diabetes as a Disability
A "disability" is "a physical or mental impairment that
substantially limits one or more of the major life activities."7
The ADA defines neither "substantially limits" nor "major life
activities." In the agency regulations promulgated to implement
the Act, however, the EEOC sets forth the factors to be considered
in determining whether an impairment is substantially limiting:
(1) the nature and severity of the impairment, (2) its duration or
expected duration, and (3) its actual or expected permanent or
long-term impact.8 "Major life activities," as defined in these
regulations, are "those basic activities that the average person in
542 U.S.C. � 12112(a)(1997).
6Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 (5th Cir.
1999).
742 U.S.C. � 12102(2)(A)(1997). Also included in the ADA's
definition of "disability" are (1) having a record of a
substantially limiting impairment and (2) being regarded as having
such an impairment. Id. at � 12102(2)(B)-(C).
829 C.F.R. � 1630.2(j)(2)(1998).
4

the general population can perform with little or no difficulty,"9
and include such functions as "caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working."10
The department argues that Gonzales is not disabled because,
when his diabetes is controlled with insulin, he is fully able to
care for himself, as well as perform most of the other essential
life functions specified in the regulations. The only function in
which Gonzales is limited, argues the department, is the
performance of particular manual tasks, including operating a motor
vehicle to police specifications and safely handling a firearm.
Unfortunately, the department notes, performance of these tasks is
an indispensable part of being a police officer. The department
argues that, because (1) a person's "inability to perform a single,
particular job does not constitute a substantial limitation in the
major life activity of working,"11 and (2) Gonzales has offered no
evidence of a general incapacity to work, he has failed to raise a
genuine issue of material fact as to whether he is disabled.
The department's argument, as facially logical as it may
appear, is suspect because it is premised on the assumption that
Gonzales's diabetes should be considered in its mitigated ---- in
929 C.F.R. Pt. 1630 App. � 1630.2(i)(1998).
1029 C.F.R. � 1630.2(i)(1998).
11Id. at � 1630.2(j)(3)(i).
5

this case, medicated ---- state. In Washington v. HCA Health Servs.
of Texas, Inc.,12 however, we held that, in determining whether an
individual is disabled, courts should consider a serious
impairment, such as diabetes, in its unmitigated state. An
insulin-dependent diabetic who is deprived of insulin will lapse
into a coma.13 Hence, applying the standard set forth in
Washington, it is clear beyond peradventure that, in its
unmitigated state, Gonzales's diabetes substantially limits one or
more major life activities.
Despite our holding in Washington, however, the question
whether courts should consider mitigating measures in making
disability determinations is still up for debate. Recently, the
Supreme Court granted certiorari and heard oral argument in two
cases that implicate precisely this issue.14 As the Supreme Court's
rulings in these cases will not be known until later this term, and
as we find other issues dispositive in the instant case, we elect
to bypass the question whether Gonzales is disabled within the
meaning of the Act, making resolution of the mitigated/unmitigated
issue unnecessary. Instead, we assume arguendo that Gonzales is
disabled and turn to the question of his qualification for the job.
12152 F.3d 464 (5th Cir. 1998).
1329 C.F.R. Pt. 1630 App. � 1630.2(j)(1998).
14See Murphy v. United Parcel Serv., 141 F.3d 1185 (10th Cir.
1998), cert granted, 119 S.Ct. 790 (1999)(No. 97-1992); Sutton v.
United Air Lines, Inc., 130 F.3d 893 (10th Cir. 1997), cert.
granted, 119 S.Ct. 790 (1999)(No. 97-1943).
6

2.
Qualified Individual with a Disability
A "qualified individual with a disability" is a disabled
person who "satisfies the requisite skill, experience, education
and other job-related requirements of the employment position [he]
holds or desires"15 and who, "with or without reasonable
accommodation, can perform the essential functions" of that job.16
Given his deteriorating medical condition, Gonzales does not argue
that without accommodation he is qualified to perform the essential
functions of a police officer, such as driving and handling a
weapon. Rather, he contends, there is a genuine issue of material
fact as to whether the department could have accommodated his
physical limitations by either (1) giving him the opportunity to
retest on both his firearms and driving tests or (2) reassigning
him to the position of evidence technician.17
Under the ADA, if an employee proves that his employer has
failed to make reasonable accommodations to the employee's "known
physical or mental limitations," the employer will be deemed to
have "discriminated," unless it can show that accommodation would
impose "undue hardship on the operation" of its business.18
1529 C.F.R. � 1630.2(m)(1998).
1642 U.S.C. � 12111(8)(1997); 29 C.F.R. � 1630.2(m)(1998).
17At some point prior to Gonzales's retirement, the position
of evidence technician was retitled "Community Relations Officer."
Because both parties and the district court refer to the position
using its previous title, we too use the former title.
1842 U.S.C. � 12112(b)(5)(A)(1997).
7

(a)
Retesting
Gonzales first argues that the department could have
accommodated his physical limitations by allowing him to retake his
firearms and driving exams. In support of this position, Gonzales
relies on the deposition testimony of Police Chief Douglas to the
effect that officers are routinely given more than one chance to
meet their certification requirements. Gonzales claims that, even
though he was told that he would be permitted to retest, he was, in
fact, never afforded the opportunity to do so.
Based on a review of the record, we find Gonzales's assertions
regarding the NBPD's retesting practices questionable at best.
Although Chief Douglas did testify that examiners tend to "work
with" the officer on the day of his testing in an effort to help
him retain qualification, the Chief also indicated that it is not
the department's general practice to allow officers to return on a
subsequent day for retesting. Chief Douglas did testify, however,
that it was his understanding that, in the instant case, Gonzales
had in fact been permitted to return to the shooting range on a
second occasion but that he had failed the firearms certification
test on that day too.
Be that as it may, we conclude that, even if Gonzales is
correct in asserting that the NBPD should have but did not allow
him to retest, there is no genuine issue of material fact as to
whether he is capable of performing all essential functions of a
8

police officer. Pretermitting consideration of firearms
proficiency, we observe that, under the current law in this
circuit, a driver with insulin-dependent diabetes poses a direct
threat to the health and safety of others as a matter of law.19 As
it is undisputed that driving is an essential function of every
NBPD police officer, Gonzales is not qualified for the position in
the absence of an accommodation that will eliminate the inherent
safety risk that his driving poses. And, as Gonzales cannot show
that retesting would make him a safer driver, given his neuropathy,
such an accommodation, i.e., retesting, cannot be considered
reasonable under the Act.
We recognize that, in light of changes to the federal
regulations on which our per se rule was based, as well as possible
advancements in medical technology, the blanket exclusion of
insulin-dependent diabetics from positions that require driving may
no longer be viable.20 Nevertheless, it is undisputed that, in the
instant case, Dr. Davis performed an individualized assessment of
Gonzales's medical condition and, based on that assessment,
concluded that his diabetic neuropathy prevents Gonzales from being
able to handle a firearm safely or to drive a vehicle to police
specifications. Hence, we conclude that, even in the absence of
19See Chandler v. City of Dallas, 2 F.3d 1385, 1395 (5th Cir.
1993); Daugherty v. City of El Paso, 56 F.3d 695, 698 (5th Cir.
1995).
20See Kapche v. City of San Antonio, No. 98-50345 (on remand
for consideration of this issue).
9

the per se rule, there is no genuine issue of material fact as to
whether Gonzales is qualified for the job of police officer, with
or without the retesting accommodation.
(b)
Reassignment
Gonzales further contends, however, that the department could
have accommodated his limitations by reassigning him to the
position of evidence technician.21 Under the ADA, reassignment to
a vacant position can be a reasonable accommodation,22 and the
department has conceded that an evidence technician job was
available when Gonzales retired. Before liability will be imposed
on the department for failing to accommodate Gonzales through
reassignment, however, Gonzales must first satisfy his burden of
proving that he is qualified, with or without reasonable
accommodation, for the evidence technician job.23 The department
argues that Gonzales has failed to adduce evidence sufficient to
21Initially, Gonzales also argued that the department could
have reassigned him to the position of police dispatcher. At oral
argument on appeal, however, counsel for Gonzales abandoned this
claim, admitting that there were no dispatcher positions available
at
the
time
Gonzales
retired. See
42
U.S.C.
�
12111(9)(B)(1997)(defining "reasonable accommodation" as, inter
alia, reassignment to a vacant position).
22Id. at � 12111(9)(B).
23See 29 C.F.R. Pt. 1630 App. � 1630.2(o)(1998); Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678(7th Cir.
1998)(noting that, to be considered "qualified" for the potential
new position, an individual must again (1) satisfy the legitimate
prerequisites for that alternative position, and (2) be able to
perform the essential functions of that position with or without
reasonable accommodation).
10

raise a genuine issue of material fact as to whether he can meet
this burden. We agree.
Evidence technician is a "certified position," meaning inter
alia that an applicant must be a commissioned officer.24 To be a
commissioned officer, though, one must be both firearms and driving
certified. As previously noted, the record shows that Gonzales
failed his firearms requalification test and, at the very least,
experienced difficulties with his driving exam. Furthermore, Dr.
Davis's medical evaluation indicates that, even had Gonzales been
allowed to retest in these areas, his severe diabetic neuropathy
would continue to limit his ability to handle a firearm safely and
drive a vehicle to police specifications. Thus, as Gonzales is not
qualified to be a commissioned officer, he is likewise not eligible
---- qualified ---- for the position of evidence technician.
Consequently, the department cannot be held liable for failing to
accommodate Gonzales through reassignment to this position.
The only way in which Gonzales might possibly have escaped
this outcome would have been to challenge the legitimacy of the
NBPD's commissioned officer qualification standard for evidence
technician. Under the ADA, if a plaintiff can prove that his
employer has imposed eligibility requirements that tend to screen
out the disabled, that employer will be deemed to have
24At oral argument on appeal, counsel for Gonzales contended
that the position of evidence technician was, at some point,
decertified, thereby removing the commissioned officer requirement.
We find nothing in the record to support this contention.
11

"discriminated" unless it can demonstrate that the particular
eligibility standard or criterion in question is "job-related" and
"consistent with business necessity."25
In the instant case, the department's requirement that all
evidence technicians be commissioned officers is a facially neutral
standard. More importantly, nowhere in any of the pretrial,
summary judgment, or appellate pleadings or proceedings has
Gonzales contended that this particular requirement had an adverse
impact him.26 Thus, as Gonzales failed even to plead a disparate
impact claim, the burden never shifted to the department to prove
that its qualification requirements for the position of evidence
technician are job related and consistent with business necessity.
In essence, Gonzales waived this contention by not advocating it.
2529 C.F.R. � 12112(b)(6)(1998).
26Recognized as an actionable form of discrimination under
Title VII, the disparate impact theory has been adopted entirely by
the ADA. See 42 U.S.C. S 12112(b)(3)&(6)(1997); 1 H.H. Perritt,
Jr., Americans With Disabilities Act Handbook � 4.52 (3d ed. 1997);
29 C.F.R. � 1630.15(b)&(c)(1998)(discussing disparate impact
defenses).
To make out a Title VII prima facie claim of disparate impact
discrimination, a plaintiff must (1) identify the challenged
employment practice or policy, and pinpoint the defendant's use of
it; (2) demonstrate a disparate impact on a group that falls within
the protective ambit of Title VII; and (3) demonstrate a causal
relationship between the identified practice and the disparate
impact. See 42 U.S.C. � 2000e-2(k)(1)(A)(i); EEOC v. Steamship
Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir. 1995)(citing
Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-57 (1989)). In
the ADA context, a plaintiff may satisfy the second prong of his
prima facie case by demonstrating an adverse impact on himself
rather than on an entire group. 1 Barbara Lindemann & Paul
Grossman, Employment Discrimination Law 333-34 (3d ed. 1996).
12

III.
CONCLUSION
Based on our de novo review, we conclude that there is no
genuine issue of material fact as to whether the department failed
to meet its reasonable accommodation obligation under the ADA. The
only accommodations sought by Gonzales were retesting and
reassignment to the position of evidence technician. For the
foregoing reasons, neither of these alternatives are viable.
Consequently, even if, as we have assumed without granting,
Gonzales is "disabled" for purposes of the ADA, he is not
qualified, with or without accommodation, for the position of
police officer. The district court's summary judgment in favor of
the City is, therefore
AFFIRMED.
13