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LACORTE v. O'NEILL

March 27, 2001

JEFFERSON G. LACORTE, PLAINTIFF,
V.
PAUL H. O'NEILL, SECRETARY OF THE TREASURY, DEFENDANT.



The opinion of the court was delivered by: Roberts, District Judge.

MEMORANDUM & OPINION

Plaintiff Jefferson G. LaCorte brings this action pursuant to the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.) alleging that defendant violated his federal civil rights by denying him employment as a Uniformed Officer of the United States Secret Service based upon his diabetes. Defendant*fn1 has filed a motion for partial summary judgment. Because I find that genuine issues of material fact exist as to (1) how or if plaintiffs diabetes affects his ability to perform the essential functions of the job he seeks; (2) whether plaintiffs proposed "reasonable accommodations" would allow him to perform those functions; (3) what accommodations plaintiff is actually requesting; and (4) the requirements of maintaining a "constant state of readiness," which both parties agree is an essential function of a Secret Service agent's job, defendant's motion will be denied.

BACKGROUND

Plaintiff is a Type I diabetic.*fn2 (Pl.'s Opp'n Def.'s Mot. Dismiss ("Pl.'s Opp'n") at 3; Def.'s Statement of Facts ("Def.'s Facts") ¶ 38.) Since 1988, he has sought hospitalization for "moderate" hypoglycemia*fn3 on three occasions. (Pl.'s Opp'n at 15; Def.'s Facts ¶ 40.) On the first occasion, he had the flu, which prevented him from ingesting any food, including glucose. (Id.) He now regularly receives flu shots. (Pl.'s Opp'n at 16.) On the second occasion, plaintiff suffered hypoglycemia to the point of sweating.*fn4 (Def.'s Facts 141.) On the third occasion, in 1995, plaintiff apparently experienced the ill effects of too much drink, which prevented him from ingesting food, and went to the hospital to receive intravenous delivery of glucose. (Pl.'s Opp'n at 16; Def.'s Facts ¶ 42.) Plaintiff alleges he has not experienced any severe hypoglycemic symptoms since. (Pl.'s Opp'n at 14.)

As part of the application process, plaintiff completed a medical questionnaire and submitted to a pre-offer medical exam. (Dep't of Treasury, EEO Administrative Complaint, Final Decision, Oct. 24, 1996 ("EEO Ruling") at 2.) The Secret Service initially rejected plaintiff because of a blanket policy against hiring any "insulin-dependant diabetic." (Pl.'s Opp'n at 25; Def.'s Facts ¶ 51.)

Plaintiff filed an EEO complaint challenging his nonselection. (EEO Ruling at 1.) Thereafter, Dr. Bruce N. Butler, a doctor retained by the Secret Service, issued an opinion that concluded plaintiff should not be hired. (Def.'s Facts ¶ 52-60.) Defendant alleges this report was based on plaintiffs medical examination and a review of Uniformed Division officers' job duties. (Def.'s Facts ¶ 52.)

The DOT's Office of Equal Opportunity ruled that (1) plaintiff was not a qualified disabled individual who had shown he could perform as a Uniformed Division officer with or without reasonable accommodation; (2) plaintiff was entitled to an individual determination as to his ability to perform as a Uniformed Division officer; and (3) the Secret Service's policy of subjecting applicants to pre-offer medical examinations and questionnaires appeared to violate the American with Disabilities Act and the Rehabilitation Act. (EEO Ruling at 6.) Plaintiff received a notice of his right to sue (Compl. ¶ 17) and filed this action. Defendant has moved for partial summary judgment.

DISCUSSION

Summary judgment is appropriate where the record shows that "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment must provide the district court with a factual record sufficient to demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may support its motion successfully if it "`inform[s] the district court of the basis for its motion, and identif[ies] those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1032 (D.C.Cir. 1988) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(c))). In this case, the Court must determine whether defendant, as the movant, has provided sufficient evidence that no dispute exists concerning those facts relevant to assessing plaintiffs claim under the Rehabilitation Act.

Section 504 of the Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability . . . be subjected to discrimination . . . by any Executive Agency." 29 U.S.C. § 794(a). The standards for determining a violation are the same as those applied under the Americans with Disabilities Act. 29 U.S.C. § 794(d). To establish a prima facie case of discrimination, the plaintiff must show that he is handicapped;*fn5 that he can perform the essential functions of his job with reasonable accommodation; and that he was discharged due to his disability. Barth v. Gelb, 2 F.3d 1180,1186 (D.C.Cir. 1993).

Defendant argues that plaintiffs medical history indicates he is at continual risk of severe hypoglycemia, which could suddenly affect his ability to act and respond, and that any accommodation of this condition would pose an undue hardship on the Secret Service. Plaintiff argues that he is not at a significant risk of severe hypoglycemia, that his condition would not affect his employment as a Secret Service agent, and hence defendant cannot establish as a matter of law that his diabetes precludes him from performing, with reasonable accommodation, the essential functions of the job he seeks.

On this record, there are disputed issues of material fact present. First, there is a significant dispute as to what risk, if any, plaintiffs symptoms pose to his ability to perform the "essential functions" of a Secret Service officer. This dispute boils down to the characterization of plaintiffs medical history. Plaintiff maintains that he suffers only once a month or so from "mild" diabetic symptoms of a slight tingling in his fingers or lips which would not interfere with his job performance and can be dispelled after three or so minutes by eating a simple sugar snack; that he has suffered from "moderate" diabetic symptoms which required hospitalization on only three previous occasions — two when he had the flu (for which he now gets regular flu shots) and one during college that produced only excessive sweating; and that he was able to perform under conditions similar to those of the Secret Service as a private security guard assigned to members of the Saudi Royal Family. (Pl.'s Opp'n at 27-30.) Defendant counters that plaintiffs medical history indicates that he is at risk of "serious" hypoglycemic symptoms that may recur at any time and require hospitalization; that the risk of these symptoms cannot be gauged with any medical accuracy; and that even when he experiences milder symptoms, plaintiff still requires a snack and two to ten minutes of recovery time before being able to perform. (Def.'s Mot. at 25-29.) At bottom, there is a question as to how disabling the effects of plaintiffs diabetes actually are.

Second, there is a dispute about whether plaintiffs proposed "reasonable accommodations" would allow him to perform these essential functions. Both parties present arguments on this point that closely relate to their characterization of plaintiffs medical condition. Plaintiff maintains that he requires only a fanny pack containing a snack, a pocket-sized glucometer, "perhaps" a small vial or pen containing insulin, and permission to self-administer blood tests and insulin on his regularly scheduled breaks. He says he needs no scheduling of breaks or activity that is any different from that of any other junior Secret Service agent. (Pl.'s Opp'n at 3840.) He contends these measures would not interfere with his duties, the Secret Service's mission, or the Secret Service's administration. (Id.) Defendant counters that ...


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