David Atkins v. Ken Salazar, Secretary

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 10-60940 December 12, 2011

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

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

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.

No. 10-60940

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,

(b) Directly related to the actual requirements of the position.”

Id.

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.

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No. 10-60940

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

a medical evaluation program must be clearly supported by the nature of the

work.” Id.

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).

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No. 10-60940

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

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

4

No. 10-60940

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

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

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.”

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No. 10-60940

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,

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]

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.”

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No. 10-60940

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.

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

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 . . . .”).

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No. 10-60940

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

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

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.

5 C.F.R. § 339.104(g).

8

No. 10-60940

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

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.

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.”

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No. 10-60940

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

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.

11

As the events at issue in this case took place from 2000 to 2005, the 2008

Amendments to the ADA are not relevant.

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No. 10-60940

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

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

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).

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No. 10-60940

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

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]

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

No. 10-60940

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.

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.

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No. 10-60940

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

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

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

No. 10-60940

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.

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

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

15

No. 10-60940

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

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

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).

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No. 10-60940

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

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

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

No. 10-60940

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,

[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

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No. 10-60940

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

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

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

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.”)

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No. 10-60940

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

[] 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)

20

No. 10-60940

(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

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

21

No. 10-60940

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

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).

22

No. 10-60940

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

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

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

(1979)).

23

No. 10-60940

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

(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.”

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No. 10-60940

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

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

25

No. 10-60940

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

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.

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.

42 U.S.C. § 12111(9).

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No. 10-60940

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.

27