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| **[United States District Court]{.smallcaps}**                        |
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| **[Southern District of Mississippi]{.smallcaps}**                    |
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| JACKSON DIVISION                                                      |
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UNITED STATES OF AMERICA

> Plaintiff

v.  [Civil Action No.]{.smallcaps}: 3:00CV377BN

    MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY

    Defendant

    **[UNITED STATES' MEMORANDUM IN OPPOSITION]{.underline}**

    **[TO THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT]{.underline}**

    **[I. INTRODUCTION]{.underline}**

    In 1993, Ronnie Collins arrived at the Mississippi Department of
    Public Safety (MDPS) Highway Patrol Training Academy (the Academy)
    to fulfill his life-long goal of becoming a Trooper. At that time,
    he had served in law enforcement for 13 years, and resigned his
    position as a police officer and as a correctional officer for this
    opportunity. Knowing that Mr. Collins had insulin-dependent diabetes
    and used food and insulin to manage his diabetes, MDPS had medically
    qualified him for the Academy. Nonetheless, during the two first
    days at the Academy, MDPS denied or interfered with three requests
    by Mr. Collins for food-related accommodations.

    As a consequence, two days after starting at the Academy, Mr.
    Collins was found sitting on his bunk, in a state of profound
    hypoglycemia (low blood sugar). Because of his illness, he was
    disoriented and unable to comply with orders from the training
    officers that he go to physical training. When an officer touched
    his shoulder to turn him around, Mr. Collins -- in a responsive
    gesture -- allegedly grabbed the shirt of the training officer. MDPS
    immediately terminated Mr. Collins and put him in a car to drive
    home, even though he was confused and experiencing memory loss from
    hypoglycemia.

    MDPS claims that its termination of Mr. Collins was justified,
    because it has a right to dismiss a cadet for misconduct, even if
    the conduct is caused by a disability. Defendant's argument is
    fatally flawed, however, because it ignores its own failure to
    reasonably accommodate Mr. Collins. MDPS deprived Ronnie Collins of
    the only reasonable accommodation he needed and asked for -- extra
    food. MDPS cannot lawfully deprive an individual of the "medication"
    that he needs to control his diabetes (i.e. food) and then terminate
    him when he becomes ill due to lack of accommodation.

    **[II. APPLICABLE LAW]{.underline}**

    **A. Summary Judgment Standard**

    Summary judgment should be rendered only "if the pleadings,
    depositions, answers to

    interrogatories, and admissions on file, together with affidavits,
    if any, show that there is no genuine issue as to any material fact
    and that the moving party is entitled to judgment as a matter of
    law." Fed. R. Civ. P. 56. A factual dispute is material only if it
    might affect the outcome of the suit under the governing law.
    [Anderson v. Liberty Lobby, Inc]{.underline}., 477 U.S. 242, 248
    (1986). Whether a genuine issue of material fact is presented will
    be determined by asking if a reasonable jury could return a verdict
    for the non-moving party. [Id]{.underline}. When evaluating a motion
    for summary judgment, the facts are to be construed in a light most
    favorable to the non-moving party. [Matsushita Electric Industrial
    Co. v. Zenith Radio Corp]{.underline}., 475 U. S. 574, 587 (1986).
    The district court must not \"resolve factual disputes by weighing
    conflicting evidence\...since it is the province of the jury to
    assess the probative value of the evidence.\" [Kennett-Murray
    Corp. v. Bone]{.underline}, 622 F.2d 887, 892 (5th Cir. 1980).
    Summary judgment is improper where the court merely believes it
    unlikely that the non-moving party will prevail at trial. [Nation­al
    Screen Serv. Corp. v. Poster Exchange, Inc.]{.underline}, 305 F.2d
    647, 651 (5th Cir. 1962).

    **B. Americans With Disabilities Act Standards**

    The ADA prohibits an employer from discriminating against a
    qualified individual with a disability, who is an employee or
    applicant, because of his or her disability. 42 U.S.C. § 12112(a).

    \"Discrimination\" under the statute includes:

    not making reasonable accommodations to the known physical or mental
    limitations of an otherwise qualified individual with a disability
    who is an applicant or employee, unless such covered entity can
    demonstrate that the accommodation would impose an undue hardship on
    the operation of the business of such covered entity. 42 U.S.C.
    §12112(b)(5)(A).

    Disability is defined in the statute as:

    A.  a physical or mental impairment that substantially limits one or
        more of the major life activities of such individual;

    B.  a record of such an impairment; or

        C. being regarded as having such an impairment.[^1]

        To establish a *prima facie* case of disability discrimination
        under the ADA, the United States must demonstrate that the
        Charging Party: (1) is an individual with a disability; (2) is
        otherwise qualified to perform the job requirements, with or
        without reasonable accommodation;

        and (3) suffered an adverse employment action because of his
        disability.[^2]

        **[III. DISPUTES OF MATERIAL FACT PRECLUDE SUMMARY
        JUDGMENT]{.underline}**

        **A. There Is a Dispute of Material Fact As To Who Was
        Responsible for Mr. Collins' Hypoglycemia at the Academy**

        In 1987, Ronnie Collins was diagnosed with diabetes, and in
        1988, Mr. Collins began the painful, lifelong process of
        injecting himself with insulin every day. (Ex. 1, Walt Med. Rec.
        USID00249, US00298, US00300.) Because of his diabetes, Mr.
        Collins overhauled his eating habits and began the constant task
        of regulating his food based upon his insulin and activity
        level. (Ex. 2, Collins Dep. at 134; Ex. 3, Linda Collins Aff.)
        While Defendant asserts that Mr. Collins did not possess an
        adequate understanding of diabetes self-care, (Def.'s Br. at 3),
        in fact, Dr. Frank Vinicor, M.D., M..P.H.,[^3] one of the
        nation's leading experts on diabetes care, has stated that Mr.
        Collins' diabetes treatment in 1993 was at an appropriate and
        acceptable standard of care, and Mr. Collins had a sound
        understanding of how to manage his diabetes at that time.[^4]
        (Ex. 4, Vinicor Dep. at 15, 21-22, 84-85; Ex. 2, Collins Dep. at
        9, 12-13, 17-19.)

        In 1993, Mr. Collins managed his diabetes with insulin and food,
        taking into consideration his activity level, and when
        necessary, adjusting how much and when he ate. He always had to
        think about eating, and as he explains, he "basically has to eat
        constantly, it seems, on a regular basis just in order to feed
        it\... I have to feed it so that way it won't consume me." (Ex.
        2, Collins Dep. at 137.) Because of his diabetes, Mr. Collins no
        longer has the choice of whether to eat or not to eat. He must
        carefully monitor not only the types of foods he eats, but also
        the portion size, how often he eats, and when he eats. (Ex. 2,
        Collins Dep. at 13, 134.) If Mr. Collins deviates from his
        required diet, he will "pay for it dearly" with either the
        uncomfortable symptoms of hyperglycemia (high blood sugar), or
        the potentially life threatening symptoms of hypoglycemia (low
        blood sugar). (Ex. 2, Collins Dep. at 134, 136.)

        From his diagnosis through 1993, Mr. Collins' blood sugar levels
        tended to run high. (Ex. 4, Vinicor Dep. at 71; Ex. 6, Walt Dep.
        at 37.) As directed, Mr. Collins periodically tested his urine
        to determine whether his sugar level was too high. (Ex. 7,
        Vinicor Expert Rep. at US00333.) Mr. Collins did not test his
        blood sugar level for "lows" because he was easily able to feel
        his symptoms of low blood sugar, which included sweating,
        hunger, tingling of the fingertips and lips, and quivering leg
        muscles, and to correct them with food. (Ex. 2, Collins Dep. at
        11, 31.) When Mr. Collins experienced initial symptoms of
        hypoglycemia, he would immediately eat a peppermint candy (which
        he routinely carried with him), drink a cola, or take some other
        available simple sugar, and then stop what he was doing to get
        more substantial food. (Ex. 2, Collins Dep. at 12, 131; Ex. 4,
        Vinicor Dep. at 77.) That Mr. Collins never had a major
        hypoglycemic episode until he attended the Academy, (Ex. 2,
        Collins Dep. at 90-91), is further evidence of his ability to
        accurately recognize and correct the symptoms of hypoglycemia,
        when he has access to food.

        With very hard work, regular attention to his food intake,
        exercise, and insulin use, Mr. Collins successfully worked in
        law enforcement for 13 years before attending the Academy. (Ex.
        8, Collins MDPS Application at USID00224.) He worked as a
        full-time Correctional Officer for the Mississippi Department of
        Corrections in Parchman and as a full-time police officer for
        Drew, Mississippi, working both jobs simultaneously at times.
        ([Id]{.underline}.) In 1990, Mr. Collins successfully completed
        the "quasi-military" training academy required by his position
        as a Drew police officer. (Ex. 9, Robinson Aff.) His
        supervisors, at both Drew and Parchman, respectively describe
        him as an "excellent police officer" and as "one of the best
        employees I ever had." ([Id]{.underline}.; Ex. 10, Armstrong
        Aff.)

        In 1993, Mr. Collins was accepted to the MDPS Academy Class 48,
        conditioned upon his successful completion of their
        pre-employment procedures, including a medical examination. (Ex.
        11, Stewart Dep. at 14-16.) Mr. Collins was thrilled to be
        accepted to the Academy -- becoming a Mississippi State Highway
        Patrol Trooper was his "chosen career," the goal of his
        lifetime. (Ex. 12, Parchman Resignation Letter; Ex. 2, Collins
        Dep. at 112.) At the medical exam, Mr. Collins advised Dr. Mark
        Brooks (a contract physician who performed the applicant medical
        examinations in 1993) and Lt. Col. Stewart (the MDPS personnel
        director and "ADA Coordinator," who was present at Mr. Collins'
        medical exam) that he had diabetes and used insulin. (Ex. 2,
        Collins Dep. at 15.) The purpose of the exam was to evaluate
        whether each applicant was medically qualified to attend the
        Academy and to work as a trooper. (Ex. 13, 30(b)(6) Dep. at 56.)
        At the medical exam, applicants listed their medications and
        health conditions, and among other things, had their blood sugar
        tested. ([Id]{.underline}. at 56-57.) Dr. Brooks was directed to
        screen out applicants with health conditions which made them
        unfit. ([Id]{.underline}. at 63-64.) It was his responsibility,
        when necessary, to request further information from the
        applicant's physician, and to advise MDPS staff of any potential
        health issues. ([Id]{.underline}. at 64, 66-68.) Dr. Brooks
        noted that Mr. Collins' blood sugar was high and discussed Mr.
        Collins' diabetes with him and Lt. Col. Stewart. (Ex. 11,
        Stewart. Dep. at 19-20.) Dr. Brooks approved Mr. Collins as
        medically qualified to attend the Academy.

        Although Mr. Collins told Dr. Brooks and Lt. Col. Stewart
        (himself a graduate of the Academy) that he used insulin and
        food to control his diabetes, neither MDPS representative
        advised Mr. Collins that the Academy had rules and practices
        which would curtail Mr. Collins' access to food. (Ex. 2, Collins
        Dep. at 141-142; Ex. 11, Stewart Dep. at 20-21, 46.) More
        specifically, neither Lt. Col. Stewart nor Dr. Brooks ever
        advised Mr. Collins that, among other things, he would be barred
        from using the vending machines at the Academy, requesting a
        larger portion size from the cafeteria workers, or going through
        the cafeteria line a second time to request more food.
        ([Id]{.underline}.; Ex. 14, Haskins Aff., Mangum Aff.) In fact,
        the only mention of food at the medical examination was when Lt.
        Col. Stewart asked Mr. Collins if he needed "special food" while
        at the Academy. Mr. Collins replied that he did not need
        "special food," and that he could eat the "regular food" at the
        Academy, as he had when he went through basic training at the
        same facility. (Ex. 11, Stewart Dep. at 45-46; Ex. 2, Collins
        Dep. at 108.) In addition, neither Dr. Brooks nor Lt. Col.
        Stewart discussed with Mr. Collins the timing, intensity or
        duration of the physical activities required at the Academy.
        (Ex. 13, 30(b)(6) Dep. at 58-59.)

        Contrary to Defendant's allegations, Mr. Collins could not have
        been aware of the Academy's rules and policies relating to food
        (which it claims are contained in the Cadet Manual) before
        arriving at the Academy. (Def.'s Br. at 5.) The only written
        information that he recalls receiving before arriving at the
        Academy was a list of items to bring included with his
        acceptance letter. (Ex. 2, Collins Dep. at 19.) And, in
        answering interrogatories, MDPS stated that the Manual "is
        believed to have been distributed on August 29, 1993 during
        cadet orientation." (Ex. 15, Def.'s Response to Pl.'s Interrog.
        13.) Even if Mr. Collins received the Cadet Manual before
        arriving, it did not explain that cadets may not get a second
        portion at meal time; nor did it state that cadets cannot ask
        for -- and that cafeteria workers are not supposed to give --
        extra portions. (Ex. 16, Cadet Manual at 7-8; Ex.14, Haskins
        Aff., Mangum Aff.)

        Defendant argues that "\[b\]y reading the Cadet Manual, Collins
        obtained a basic understanding of the exercise\... arrangements
        at the training academy," and he should have adjusted his
        insulin dosage accordingly. (Def.'s Br. at 5, 22.) To the
        contrary, the United States maintains that it was not common in
        1993 for an individual to self-adjust his insulin, and that the
        Manual did not contain the detailed information (as to the
        intensity, timing, and duration of exercise) that an individual
        would require to manipulate his insulin dosage. (Ex. 4, Vinicor
        Dep. at 31-32, 107; Ex. 16, Cadet Manual at 4, 20.) Further, Mr.
        Collins' doctor had not recommended that Mr. Collins manipulate
        his insulin. (Ex. 1, Walt Med. Rec. at US00298.)

        Training officers at the Academy, who supervise the cadets, are
        experienced troopers who volunteer and are selected by MDPS to
        be assigned to "temporary duty" as the "TAC officers" for the
        Academy. (Ex. 17, McCain Dep. at 9-10.) Being a training officer
        (or "TAC officer") is an honor and a privilege at the Highway
        Patrol. (Ex. 18, Shelbourn Dep. at 13.) MDPS did not, however,
        provide any specific instruction with respect to being a TAC
        officer at the Academy. (Ex. 19, White Dep. at 14; Ex. 17,
        McCain Dep. at 9.) Nor did MDPS educate its training officers
        about the ADA or the obligation to provide reasonable
        accommodations. (Ex. 11, Stewart Dep. at 25; Ex. 17, McCain Dep.
        at 27; Ex. 18, Shelbourn Dep. at 23; Ex. 20, Brown Dep. at 26.)
        Rather, the officers were provided only one policy on the ADA,
        which lacks any procedure for requesting or responding to
        reasonable accommodations. (Ex. 21, Order 00/07; Ex. 13,
        30(b)(6) Dep. at 7-8.)

        **B. There Are Disputes Of Fact As To Whether Mr. Collins
        Requested Food-Related Accommodations At The Academy And Whether
        MDPS Denied Them**

        For Cadet Class 48, Capt. Lee Shelbourn was serving as the lead
        "Training Officer" in charge for his first time. (Ex. 18,
        Shelbourn Dep. at 15.) Also, several of the training officers,
        including Sgt. McCain, Trooper Brown, and Trooper White, were
        working at the Academy for their first time. (Ex. 19, White Dep.
        at 6; Ex. 20, Brown Dep. at 19; Ex. 17, McCain Dep. at 13.) And
        while a number of incumbent troopers have diabetes, Mr. Collins
        may have been one of the first cadets with insulin-dependent
        diabetes to attend the Academy. (Ex. 11, Stewart Dep. at 11-12;
        Ex. 22, Claiborne Dep. at 36.)

        The atmosphere at the Academy was intimidating and hierarchical.
        (Ex.19, White Dep. at 8-9; Ex. 18, Shelbourn Dep. at 6.) The
        program was a rigorous, paramilitary Academy, governed by strict
        rules and regulations. (Ex. 18, Shelbourn Dep. at 45; Ex. 23,
        Marlow Dep. at 46, 48.) Cadets were not permitted to initiate
        conversations with TAC officers unless necessary, and as a
        general rule, were not to challenge TAC officers' instructions.
        ([Id]{.underline}. at 22; Ex. 17, McCain Dep. at 30; Ex. 19,
        White Dep. at 21-22.) When a trooper had a notable interaction
        with a cadet, he was instructed to reduce it to writing in a
        "Student Contact Form" or "TAC report." (Ex. 17, McCain Dep. at
        28.)

        On August 29, 1993, Cadet Class 48 reported to the Academy at
        noon. Mr. Collins, like most cadets, just wanted to blend in and
        not be noticed. (Ex. 2, Collins Dep. at 143-144; Ex. 17, McCain
        Dep. at 30.) The first day at the Academy was grueling as the
        cadets engaged in drilling ceremonies, intensive exercise and
        orientation to the Academy. (Ex. 23, Marlow Dep. at 47.)
        Nicknamed "the longest day" by the Training Officers, the 29^th^
        included a quick dinner in the barracks (a packaged tuna-fish
        sandwich and unsweetened iced tea) and lasted until 2:00 a.m.
        when the Cadets were finally permitted to go to the barracks to
        sleep. ([Id]{.underline}.) Some time that evening, Col. Clark,
        the Chief of the Highway Patrol, advised several TAC officers
        that Mr. Collins had diabetes, and that they should keep "an eye
        on \[him\]." (Ex. 2, Collins Dep. at 29-30.)

        Mr. Collins made his first request for a reasonable
        accommodation at approximately 2:00 a.m. on August 30^th^, when
        he entered the training officers' office (know as the TAC shack)
        and requested to use the vending machines to get additional
        food. (Ex. 2, Collins Dep. at 33-35; Ex. 24, TAC Rep. at
        USID00244; Ex. 23, Marlow Dep. at 36-37; Ex. 17, McCain Dep. at
        37.) Mr. Collins explained that he had diabetes, that he had not
        had enough food that day, and that his blood sugar was low. (Ex.
        2, Collins Dep. at 34; Ex. 24, TAC Rep. at USID00244; Ex. 17,
        McCain Dep. at 38.) Officers Marlow and McCain refused his
        request to use the vending machines, although they had the
        authority to allow him access. (Ex. 23, Dep. Marlow at 41-42.)
        Instead, Sergeant Marlow gave Mr. Collins two packaged tuna-fish
        sandwiches. ([Id]{.underline}. at 41; Ex. 17, Dep. McCain at
        38.)

        There is a factual dispute as to whether Mr. Collins' request to
        use the vending machine was a request for a reasonable
        accommodation and whether MDPS' action constituted a denial of
        his request. MDPS' only stated reason for disallowing Mr.
        Collins' request is that vending machine use "is a privilege
        that's granted somewhere in the training\...there's no magic
        date\...the vending machines are downstairs and when we -- a
        cadet class is upstairs\...we're isolating ourselves from the
        other training that's going on at the academy\..." (Ex. 23,
        Marlow Dep. at 38.) Although the sandwiches raised Mr. Collins'
        blood sugar sufficiently for that night, by denying him access
        to the vending machines, MDPS precluded him from buying
        non-perishable snacks to keep for a later time. Moreover, by its
        refusal, the Academy foreclosed the vending machine as an
        additional source of calories for Mr. Collins during his time
        there. (Ex. 2, Collins Dep. at 145-147.) Marlow did not ask Mr.
        Collins if the sandwiches were an adequate substitute for the
        vending machines. ([Id]{.underline}. at.146; Ex. 24, TAC Rep. at
        USID00244; Ex. 23, Marlow Dep. at 42.)

        Mr. Collins' second reasonable accommodation request came on the
        afternoon of August 30^th^, as the cadets engaged in intense
        physical exercise on the "skid pad." Because Mr. Collins felt
        his blood sugar falling, he put a peppermint candy in his mouth,
        as he routinely did. (Ex. 2, Collins Dep. at 41.) Rather than
        permitting him to eat the candy and continue with the exercise,
        Capt. Shelbourn and another TAC officer shouted at Mr. Collins
        and ordered him to spit the candy out. ([Id]{.underline}. at
        41-42; Ex. 18 Shelbourn Dep. at 44-45.) According to two TAC
        reports, Mr. Collins explained that he needed the candy to raise
        his blood sugar for his diabetes, and Capt. Shelbourn told him
        to keep the candy in his mouth, but to show the candy to him
        periodically. (Ex. 24, TAC Rep. at USID00239, USID00242; Ex. 18,
        Shelbourn Dep. at 44-49.) The directive to periodically show
        Capt. Shelbourn the candy made no sense to Mr. Collins, since he
        obviously needed to eat up the candy to get its benefit. (Ex. 2,
        Collins Dep. at 42.) Although Mr. Collins was permitted to keep
        the candy, he was also ordered to drop and do pushups.
        ([Id]{.underline}.; Ex. 18, Shelbourn Dep. at 45-46; Ex. 23,
        Marlow Dep. at 51-52.) The push-ups likely undermined the effect
        that the peppermint would have had in raising Mr. Collins' blood
        sugar. (Ex. 4, Vinicor Dep. at 77-78.) As a result of this
        hostile encounter, Mr. Collins was intimidated from openly
        eating his peppermints to supplement his sugar. (Ex. 2, Collins
        Dep. at 147.)

        Mr. Collins made his third request for accommodation during
        dinner in the cafeteria. Cadets were prohibited from speaking at
        meals, other than to say grace. (Ex. 17, McCain Dep. at 44; Ex.
        16, Cadet Manual at 12.) Contrary to Defendant's assertion
        (Def.'s Br. at 8), cadets were not permitted to ask the
        cafeteria workers for more of any particular food and they, in
        turn, were told to serve measured portions and not to talk with
        the cadets. (Ex. 14, Haskins Aff., Mangum Aff.; Ex. 2, Collins
        Dep. at 47-48.) During dinner and while several other cadets
        were still in the cafeteria, Mr. Collins approached Sgt. Marlow
        and asked him "if he could get another plate of
        food\...\[stating\] that because of his diabetic condition he
        felt he needed more food." (Ex. 2, Collins Dep. at 48-49; Ex.
        24, TAC Rep. at USID00238.) Defendant disputes that it denied
        this request for a reasonable accommodation. (Def.'s Br. at 1.)
        In his own words, Sgt. Marlow told Mr. Collins that he "should
        get enough food on the first trip thru \[sic\] the line," and
        instead gave him a couple of pieces of fruit, despite his
        authority to permit Mr. Collins to get another plate of food.
        ([Id]{.underline}.; Ex. 2, Collins Dep. at 48-49; Ex. 23, Marlow
        Dep. at 54.) Sgt. Marlow also told Mr. Collins "not to bother
        him again." (Ex. 2, Collins Dep. at 48.) Just like the evening
        before, Mr. Collins requested specific, available food for his
        diabetes and MDPS denied it and Sgt. Marlow did not ask if his
        substitution -- the fruit -- would be sufficient. The fruit was
        inadequate to maintain Mr. Collins' blood sugar at a safe level.
        ([Id]{.underline}. at 55; Ex. 4, Vinicor Dep. at 81.) Mr.
        Collins took the fruit with him to his barracks and ate it
        before going to bed. (Ex. 2, Collins Dep. at 55.)

        On the evening of August 30^th^ at around 10:00 p.m., the cadets
        were sent to the barracks for the night and the last thing that
        Mr. Collins recalls was sitting up in his bunk, grabbing a towel
        to wipe profuse sweat off his forehead. (Ex. 2, Collins Dep. at
        53-56.) The next event that Mr. Collins recalls is sitting in
        the TAC shack with Capt. Shelbourn screaming in his ear that he
        had disobeyed an order. ([Id]{.underline}. at 56-58.) Mr.
        Collins recalls that he asked what had happened, received no
        explanation, and was completely at a loss to understand what was
        occurring.

        **C. There Are Disputed Issues of Material Fact As To Whether
        MDPS Knew Or Should Have Known That Mr. Collins Was Hypoglycemic
        On August 31st**

        On the morning of August 31, 1993, as Defendant concedes, Mr.
        Collins was hypoglycemic. (Def.'s Br. at 10.) Based upon the
        written reports and testimony, the events of August 31, are as
        follows. At approximately 5:00 a.m., TAC officers woke the
        cadets and told them to report to the gym. Shortly thereafter,
        Trooper White noticed that Mr. Collins was "slow getting up,"
        and told him "to get up and get dressed, get to P.T.," and Mr.
        Collins responded that "he would \[and\] it wouldn't happen
        again." (Ex. 19, White Dep at 32.) Trooper White checked in with
        Mr. Collins a second time and noticed that Mr. Collins "had sat
        back down on his bunk" and Trooper White told Mr. Collins "again
        to get up and get dressed." ([Id]{.underline}. at 33.) Mr.
        Collins again told Trooper White that he would get up.
        ([Id]{.underline}.) On his way out of the barracks, Trooper
        White found Mr. Collins still sitting on his bunk.
        ([Id]{.underline}.) Trooper White told Mr. Collins a third time
        that "he needed to get up and go \[sic\] PT and get his clothes
        on." ([Id]{.underline}.) Mr. Collins "just sat there" in
        response to Trooper White's request. ([Id]{.underline}.) Trooper
        White went to get assistance. ([Id]{.underline}.)

        At that time, Sgt. McCain entered the barracks. According to
        Sgt. McCain, he asked Mr. Collins "what the problem was" and Mr.
        Collins responded that "there was no problem" and "that he was
        getting it together." (Ex. 17, McCain Dep. at 51-52.) Mr.
        Collins' behavior was unusual. ([Id]{.underline}. at 55.) When
        Trooper White returned with Shelbourn, they found Mr. Collins
        still by his bunk. (Ex. 18, Shelbourn Dep. at 52.) Capt.
        Shelbourn ordered Mr. Collins to "get his clothes on and go to
        P.T." ([Id]{.underline}. at 53; Ex. 24, TAC Rep. at
        USID00240-USID00241; Ex. 19, White Dep. at 34.) Mr. Collins did
        not go to the gym as ordered, but was not argumentative. (Ex.
        18, Shelbourn Dep. at 54; Ex. 24, TAC Rep. at
        USID00240-USID00241.) At no time did Mr. Collins state that he
        did not want to go to P.T. or that he wanted to quit; he simply
        did not get up. (Ex. 17, McCain Dep. at 59; Ex. 19, White Dep.
        at 54; Ex. 18, Shelbourn Dep. at 62.) When Mr. Collins finally
        stood, he turned toward his locker, perhaps to get something.
        ([Id]{.underline}. at 54; Ex. 24, TAC Rep. at
        USID00240-USID00241.) It was "very unusual" for a Cadet to turn
        away from a training officer. (Ex. 18, Shelbourn Dep. at 56.)
        Perhaps, by turning away from Capt. Shelbourn, and not following
        his direction, Mr. Collins angered Shelbourn and the other
        officers.

        While Mr. Collins had his back to Capt. Shelbourn, he put his
        hand on Mr. Collins' shoulder to turn him around. (Ex. 24, TAC
        Rep. at USID00240-USID00241; Ex. 17, McCain Dep. at 52.) In a
        reaction that the United States maintains was caused by his
        hypoglycemia, Mr. Collins "grabbed" Capt. Shelbourn "by the
        shirt." (Ex. 24, TAC Rep. at USID00240; Ex. 7, Vinicor Expert
        Rpt. at US00334-US00335.) Immediately thereafter, Sgt. McCain
        and Trooper White escorted Mr. Collins to the TAC shack to
        terminate him "for failing to obey a direct order." (Ex. 25,
        Exit Statement; Ex. 24, TAC Rep. at USID00240-USID00241.) At no
        time did any of the TAC officers feel threatened by Mr. Collins.
        (Ex. 17, Shelbourn Dep. at 56; Ex. 19, White Dep. at 45.) Mr.
        Collins failed to sign his exit statement and failed to write in
        a reason for his departure. (Ex. 25, Exit Statement.) While
        being processed out, Mr. Collins recalled that Trooper White
        said "oh, you're a diabetic? Then we don't need you\..." (Ex.
        26, EAB Transcript USID00152.)

        Capt. Shelbourn testified that if Mr. Collins had said "yes sir,
        and then not responded, obviously a red flag would have gone
        up," and he would have ensured Mr. Collins received medical
        attention. (Ex. 18, Shelbourn Dep. at 88.) Although the TAC
        reports and testimony show that this is precisely what happened,
        Capt. Shelbourn did not seek medical assistance for Mr. Collins
        but instead terminated him. (Ex. 25, Exit Statement.)

        Trooper Brown -- who was unaware of the earlier events --
        escorted Mr. Collins to the barracks to pack his belongings. He
        noted that Mr. Collins appeared "totally disoriented" while
        helping him pack and escorting him to his car. (Ex. 24, TAC Rep.
        at USID00237.) Two Rankin County officers were called to escort
        Mr. Collins off the Academy grounds. (Ex. 24, TAC Rep. at
        USID00241.) While driving off the Academy grounds, Mr. Collins
        stopped his car and asked the officers for directions because he
        could not recall which way he should drive to go home. (Ex. 2,
        Collins Dep. at 58-59.) During that interaction, one of the
        officers told Mr. Collins that a TAC officer had said "that they
        don't understand or see how \[he\] managed to get in due to the
        fact that \[he\] was a diabetic." ([Id]{.underline}. at 126.)
        Mr. Collins drove off the Academy grounds and recalls being at a
        fast food restaurant, ordering a breakfast sandwich and juice.
        ([Id]{.underline}. at 59-61.) Mr. Collins recalls that the
        drive-through window looked "so distant," and his memory was
        going in and out. ([Id]{.underline}. at 61.) Along the way home,
        Mr. Collins pulled his car to the shoulder of the road and fell
        asleep. ([Id]{.underline}. at 63.) He was awakened when a truck
        passing by shook his vehicle. ([Id]{.underline}.) Mr. Collins
        arrived home and called his doctor because he was very upset
        that he did not know what had happened at the Academy and did
        not recall his drive home.[^5] ([Id]{.underline}. at 64.)

        When Mr. Collins arrived at Dr. Walt's office he was, according
        to Dr. Walt, "confused," "had a clouded memory" and was "talking
        in circles." (Ex. 6, Walt Dep. at 17-18; Ex. 1, Walt Med. Rec.
        at USID00247.) Mr. Collins' blood sugar was measured at a level
        of 39, which is very low. ([Id]{.underline}.) Dr. Walt forced
        Mr. Collins -- who initially refused -- to drink a Coke in order
        to immediately raise his blood sugar. ([Id]{.underline}.; Ex.
        6,Walt Dep. at 19.)

        Based upon expert testimony and the TAC officers' written
        description of the events of that morning, it is evident that
        Mr. Collins was disoriented, hypoglycemic, and unable to fully
        comprehend what was going on between 5:00 and 5:30 a.m, on
        August 31^st^, when MDPS terminated him. (Ex. 7, Vinicor Expert
        Rep. at US00334-US00335; [See]{.underline} Facts,
        [Supra]{.underline} at 12-14.) As a result of his severe
        hypoglycemia, Mr. Collins experienced "cognitive dissonance."
        (Ex. 4, Vinicor Dep. at 47.) The condition of cognitive
        dissonance, which is a consequence of progressively severe
        hypoglycemia, is characterized by a lack of higher cognitive
        function. ([Id]{.underline}.) While an individual may appear to
        be awake and alert, in fact, he is not truly aware because his
        brain is starved for sugar. ([Id]{.underline}.) While he was in
        that impaired state that morning, none of the four MDPS officers
        who encountered him offered Mr. Collins food or medical
        assistance. While Defendant concedes that Mr. Collins
        experienced hypoglycemia, it contends that the hypoglycemia was
        caused by Mr. Collins' poor diabetes care. (Def.'s Br. at 10,
        22.) The United States disagrees, and contends that Mr. Collins'
        hypoglycemia was caused by MDPS' failure to allow him to access
        the available foods that he requested from them.

        In the final analysis, it was Defendant's obligation -- under
        the ADA as well as its own standards -- to ensure that the TAC
        officers had a sufficient understanding of diabetes to enable
        them to properly respond to Mr. Collins' requests for food, and
        to recognize his hypoglycemia. It is the *foremost* obligation
        of the training officers to protect the health and safety of the
        cadets. (Ex. 23, Marlow Dep. at 18-19; Ex. 27, BLEOST Manual
        §27.4.1 & §44.1.3.5 at US00488, US00532-US00533.) Second, the
        MDPS has itself identified the ability to recognize "a person as
        disturbed (mentally, emotionally, etc.) or incapacitated (drunk,
        epileptic, etc.)" as an essential job task of a highway patrol
        trooper. (Ex. 29, State Trooper Task List at 24.) Third, all
        MDPS troopers are required to annually update their Red Cross
        First Aid certification, which, in 1993, included training about
        recognizing and understanding diabetes. (Ex. 30, Red Cross
        Training Manual.) Despite these job requirements, the TAC
        officers failed to protect Mr. Collins' health and safety and
        failed to recognize or acknowledge his hypoglycemia. Instead,
        MDPS terminated him because of his diabetes.[^6]

        **[IV. MDPS IS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF
        LAW]{.underline}**

        **A. MDPS Has Not Shown That It Met Its Legal Duty To Reasonably
        Accommodate Mr. Collins' Diabetes**

        An employer violates the ADA when it fails to make "reasonable
        accommodations to the known physical or mental limitations of an
        otherwise qualified individual with a disability" unless the
        employer can demonstrate that the accommodation will impose an
        undue hardship.[^7] After an employee requests an accommodation,
        and makes known his disability and its limitations, it is the
        employer's obligation to respond to the request, including, if
        necessary, initiating an informal, interactive process to
        identify the appropriate accommodation.[^8] While the employer
        is not required to provide the exact accommodation requested,
        the employer must provide an accommodation that enables the
        employee to perform the job. If the accommodation provided is
        not effective, then the employer has not met its obligation.[^9]
        Once an accommodation is properly requested, the employee and
        employer share responsibility for fashioning the appropriate
        accommodation.^1^[^10] A reasonable accommodation is one that is
        feasible for the employer, and once a request is made, it is the
        employer's burden to show that the accommodation causes an undue
        hardship.^1^[^11]

        Before Mr. Collins arrived at the Academy, MDPS knew that he had
        diabetes, and during the Academy, many of the TAC officers were
        informed that Mr. Collins had diabetes. ([See]{.underline}
        Facts, [Supra]{.underline} at 6-7, 9-12.) Mr. Collins properly
        requested a reasonable accommodation on three occasions during
        his two days at the Academy, and each time his requested
        accommodation was denied or he was punished for the request.
        Specifically, Mr. Collins requested to go to the vending
        machine, to eat a peppermint candy while on the skid pad, and to
        get a second serving of food in the cafeteria at dinner. On each
        instance, Mr. Collins identified the problem he was having (low
        blood sugar), its connection to his diabetes, and the
        accommodation he needed to remedy the problem (access to the
        vending machines, a peppermint candy, a second portion of dinner
        food). ([See]{.underline} Facts, [Supra]{.underline} at 9-12.)

        To the extent that Defendant acknowledges these requests, it
        argues that Mr. Collins' accommodation requests were
        insufficient because they were ad hoc, on-the-spot requests,
        directed to different training officers and did not include
        necessary information about his limitations. (Def.'s Br. at 21.)
        The contemporaneous TAC reports disprove these contentions
        because they show that each request was made to a training
        officer with supervisory responsibility for the cadets, and
        contained all necessary information to be permissible under the
        ADA.^1^[^12] ([See]{.underline} Facts, [Supra]{.underline} at
        9-12.) Reasonable accommodation requests can be made when an
        employee learns of his need for the request -- they do not need
        to be made in advance.^1^[^13]

        In a case presenting strikingly similar issues, [EEOC &
        Landers v. Wal-Mart]{.underline}, 99-CV-453, 2001 WL 1725300
        (W.D.N.Y. Sept. 28, 2001), the court denied summary judgment to
        an employer who terminated a diabetic employee for misconduct
        when he took an unauthorized lunch break. There, the employer
        claimed that none of its managers knew that the employee had
        diabetes, and terminated the employee for insubordination**.**
        Although the defendant argued that the plaintiff never requested
        an accommodation, the plaintiff alleged that the employer
        directed him not to take a lunch break, while knowing that he
        had diabetes and needed a regular lunch break, thus denying him
        a reasonable accommodation. The court, in denying summary
        judgment, found that if, as plaintiffs contended, the store
        manager (who directed the employee not to take a lunch break)
        was aware of his diabetic condition, a jury could conclude that
        the employer was aware that he needed such an accommodation and
        denied it.

        Although an employer need not give an employee exactly what he
        requests, the employer is obligated to engage in an interactive
        process to arrive at an appropriate accommodation.^1^[^14] An
        employer cannot drag its feet when the need for the
        accommodation is immediate.^1^[^15] The TAC officers admitted
        that Mr. Collins' requests were not burdensome and that they had
        the ability to grant them.^1^[^16] ([See]{.underline} Facts,
        [Supra]{.underline} at 10-12.) Yet those same TAC officers --
        none of whom had greater knowledge of diabetes than Mr. Collins
        -- responded to Mr. Collins' requests by substituting their
        judgment for Mr. Collins'. Those substitutions were not
        effective. (Ex. 4, Vinicor Dep. 81.) When Mr. Collins was told
        not to bother them about food again, MDPS ended the discussion
        on the matter, thereby, arguably terminating the interactive
        process.^1^[^17] In the hierarchical structure of the Academy,
        Mr. Collins was not permitted to challenge an officer, and
        cannot be responsible for failing to get the additional food
        that he needed.^1^[^18] ([See]{.underline} Facts,
        [Supra]{.underline} at 9.)

        MDPS cannot show as a matter of law that it engaged in a
        discussion (or interactive process) to determine what would have
        been an effective accommodation for Mr. Collins after any of his
        three requests. A jury could find, based on the record, that
        when the TAC officers denied Mr. Collins' use of the vending
        machines, they denied his ability to purchase additional snacks
        later without engaging in any discussion. A jury could also find
        that MDPS denied his request (or discouraged future requests)
        for an accommodation when: (1) Capt. Shelbourn yelled at Mr.
        Collins and ordered him to do push-ups for eating candy (which
        likely undermined the benefit that the candy would have on Mr.
        Collins' blood sugar level); and (2) when two TAC officers
        drafted reports noting the incident as a "Conduct" issue.
        ([See]{.underline} Facts, [Supra]{.underline} at 11-12.)
        Finally, an issue exists as to whether, when Sgt. Marlow
        substituted fruit for dinner food and told Mr. Collins not to
        bother him again for food, MDPS denied Mr. Collins an
        accommodation and precluded further discussion.
        ([See]{.underline} Facts, [Supra]{.underline} at 12). Defendant
        has not offered any evidence that it met its legal burden to
        engage in the interactive process in order to determine an
        appropriate accommodation. ([See]{.underline} Facts,
        [Supra]{.underline} at 10-12.)

        Rather, Defendant tries to escape liability for its actions by
        arguing that the officers were "placed in the impossible
        position of trying to propose food related accommodations
        without having the relevant information." (Def.'s Br. at 22.) To
        the contrary, Mr. Collins made it easy for them by requesting a
        specific accommodation: for example, to go through the cafeteria
        line a second time, and Sgt. Marlow had the authority to allow
        him to do so. ([See]{.underline} Facts, [Supra]{.underline} at
        12.)

        Defendant also argues that Mr. Collins was responsible for his
        hypoglycemia because he was not measuring his blood sugar and
        was injecting an "overly large dosage of insulin." (Def.'s Br.
        at 22.) However, Mr. Collins was monitoring his low blood sugar
        as he typically did, by sensing symptoms of low blood sugar
        (tingling, hunger), and seeking additional food when those
        symptoms occurred.^1^[^19] In addition, self-adjustment of
        insulin was not common in 1993 outside of academic medical
        centers, Mr. Collins' doctor had not recommended self-adjustment
        for him, and in any event, and a cadet would have had inadequate
        information at the Academy on which to do so. ([See]{.underline}
        Facts, [Supra]{.underline} at 7-8.) Hence, Mr. Collins' only
        remedy for the low blood sugar he developed at the Academy was
        to ingest additional calories.^2^[^20] In addition, Dr. Brooks,
        whose job was to screen out individuals who had physical
        conditions or took medicines that made them medically
        unqualified, expressed no concern about Mr. Collins' diabetes
        care, and unconditionally approved him. ([See]{.underline}
        Facts, [Supra]{.underline} at 5.)

        **B. MDPS Was Not Entitled As A Matter Of Law To Terminate Mr.
        Collins For Alleged "Misconduct" Resulting From His
        Hypoglycemia**

        The practices at the Academy restricted the cadets' access to
        food. Food was critical to Mr. Collins diabetes management. When
        MDPS interfered with Mr. Collins' ability to obtain enough food
        to raise his blood sugar, he became severely hypoglycemic. (Ex.
        4, Vinicor Dep. at 108-109.) Mr. Collins had never before
        experienced severe hypoglycemia, because he had never had his
        access to food restricted. ([See]{.underline} Facts,
        [Supra]{.underline} at 5.) He had successfully performed as a
        police officer, a correctional officer, and a cadet in the
        police academy, while having insulin-dependent diabetes. Because
        of diabetes-related hypoglycemia, Mr. Collins became cognitively
        impaired in the early morning of August 31^st^, and was unable
        to respond to the officers' directions to go to P.T.
        ([See]{.underline} Facts, [Supra]{.underline} at 13-14.) Mr.
        Collins' hypoglycemia also caused his alleged misconduct, i.e.
        grabbing the shirt of Capt. Shelbourn. Mr. Collins does not
        recall that incident and can neither admit nor deny it.
        Assuming, however, that the incident occurred as the TAC
        officers reported it, it was not a permissible reason for
        terminating Mr. Collins.

        Defendant argues that it may lawfully terminate Mr. Collins for
        "misconduct," and cites to cases where an employer terminated an
        employee for misconduct that may have been related to a
        disability. (Def.'s Br. at 16-20.) Defendant misses the point,
        however, by neglecting to factor in its own culpability. In this
        case, not only was Mr. Collins' alleged "misconduct" a result of
        his disability, it was *caused* by Defendant's failure to
        accommodate Mr. Collins. Mr. Collins' situation is easily
        distinguishable from those in the "misconduct" cases cited by
        Defendant because, in **all** of those cases, the plaintiff
        alone was responsible for his misconduct and it was not caused
        by the employer's failure to accommodate.^2^[^21] For example,
        in [Siefken v. Village of Arlington Heights]{.underline}, 65
        F.3d 664, 667 (7^th^ Cir. 1995), the plaintiff, who had
        insulin-dependent diabetes, and became hypoglycemic on the job,
        did not need nor ask for an accommodation and was properly
        terminated for "fail\[ing\] to meet the employer's legitimate
        job expectations," when he failed to control his diabetes. By
        contrast, Mr. Collins needed, and requested, reasonable
        accommodations, and it was MDPS' denial of his simple requests
        that caused Mr. Collins' hypoglycemia. None of the cases cited
        by Defendant involves the unusual scenario Mr. Collins faced
        where the employer interfered with the measures by which he
        mitigates his disability.^2^[^22] Mr. Collins' case, by
        contrast, is more analogous to an employer forcing an employee
        to turn down the volume on his hearing aid and then terminating
        him because he failed to understand the employer's instructions.
        [See]{.underline} [also]{.underline} [EEOC & Landers v.
        Wal-Mart]{.underline}, 99-CV-453, 2001 WL 1725300,
        [supra]{.underline} at 20.

        There is a question of material fact as to whether, if MDPS had
        granted Mr. Collins' requests for additional food, he would have
        become hypoglycemic, failed to get off his bunk, and
        responsively grabbed Capt. Shelbourn's collar in the midst of
        his cognitive dissonance. Defendant cannot permissibly terminate
        Mr. Collins because of conduct that it caused by denying him a
        reasonable accommodation and interfering with the measures he
        uses to control his disability.

        **C.** **A Reasonable Jury Could Conclude that MDPS Knew Or
        Should Have Known That Mr. Collins Was Experiencing Hypoglycemia
        When It Terminated Him**

        The United States maintains that the TAC officers knew or should
        have known that Mr. Collins' disorientation and strange conduct
        was the result of his diabetes. ([See]{.underline} Facts,
        [Supra]{.underline} at 13-14.) Each of the officers who denied
        Mr. Collins food knew that he had diabetes and knew that it
        could cause low blood sugar. Officers Marlow, McCain, and
        Shelbourn had each spoken to him directly about his diabetes and
        need for additional food. The TAC officers slept in a common
        barrack, ate together, and routinely discussed the events of
        each day. (Ex. 18, Shelbourn Dep. at 20-22.) Capt. Shelbourn
        also routinely reviewed all of the contact forms each morning.
        ([Id]{.underline}. at 80-81.) While the three officers who
        encountered him in the barracks, on the morning of August
        31^st^, claim that Mr. Collins did not appear "ill" or exhibit
        signs of hypoglycemia, it was clear to Trooper Brown, who had no
        previous contact with Mr. Collins, that he was acting "totally
        disoriented." ([See]{.underline} Facts, [Supra]{.underline} at
        15.) Hence, as Dr. Vinicor testified, the officers should have
        known that Mr. Collins was hypoglycemic on the morning of August
        31^st^, and should have gotten him medical attention.^2^[^23]
        Also, if MDPS' own rules were followed, and he were given a
        hearing before he was summarily terminated, MDPS would have
        certainly discovered that Mr. Collins was ill and perhaps, Mr.
        Collins could have successfully completed the Academy.
        ([See]{.underline} Facts,

        [Supra]{.underline} at 16.)

        Additionally, if the TAC officers did not know how to properly
        respond to Mr. Collins' situation, it was not because he failed
        to make his diabetes known, request accommodations or try to
        engage in the interactive process. Instead, it is because MDPS
        failed to train its TAC officers about the ADA, reasonable
        accommodations and how to serve as supervisors.
        ([See]{.underline} Facts, [Supra]{.underline} at 8-9.)
        Compounding this lack of education was the fact that the four
        TAC officers who encountered Mr. Collins on the morning that
        MDPS terminated him were serving in their capacities for their
        first time. Contrary to the conjecture of an inexperienced
        officer, Mr. Collins gave no indication that he wanted to quit
        the Academy. (Def.'s Br. at 10; [See]{.underline} Facts,
        [Supra]{.underline} at 13.)

        **D. A Reasonable Jury Could Conclude That Ronnie Collins Was
        "Qualified" to Perform the Job of a Highway Patrol Cadet**

        Evidence in the record supports that Mr. Collins is a
        "[qualified]{.underline} individual with a disability" -- that
        is, "an individual with a disability who satisfies the requisite
        skill, experience, education and other job-related requirements
        of the employment position such individual holds or desires, and
        who, with or without reasonable accommodations, can perform the
        essential functions of such position."^2^[^24] A reasonable jury
        could find that with reasonable accommodations related to his
        food intake, Mr. Collins could have successfully completed the
        Academy. He passed all of the pre-employment requirements and
        tests to be a cadet, including MDPS' pre-employment medical
        examination. ([See]{.underline} Facts, [Supra]{.underline} at
        6-7.) Unlike many other cadets who voluntarily quit the MDPS
        Academy because they lacked the requisite physical fitness, Mr.
        Collins was in top physical shape when he entered the Academy
        and his doctor had no reservations about his ability to succeed
        at the Academy. (Ex. 2, Collins Dep. at 22-23; Ex. 6, Walt Dep.
        at 35-36.) Prior to going to the MDPS Academy, Mr. Collins had
        also successfully completed three other academies, one after he
        was diagnosed with insulin-dependant diabetes.
        ([See]{.underline} Facts, [Supra]{.underline} at 5-6.)

        In 1993, Mr. Collins also had five years of experience as a
        police officer which required many of the same job tasks as a
        highway Trooper.^2^[^25] ([See]{.underline} Facts,
        [Supra]{.underline} at 5-6.) In all his years as a police
        officer and a correctional officer, Mr. Collins' diabetes never
        interfered with his ability to perform his job.
        ([Id]{.underline}.) Former superiors have only praise for Mr.
        Collins and claim that he was one of the best employees they
        ever had. ([Id]{.underline}.)

        **E. A Reasonable Jury Could Find That Ronnie Collins Is an
        Individual with a Disability**

        Defendant acknowledges that "there is evidence in the record
        that raises a legitimate question as to whether Mr. Collins was
        'disabled' under the ADA" (Def.'s Br. at 16.), thereby conceding
        that Summary Judgment is not proper on this issue.
        Notwithstanding Defendant's concession, the United States will
        set forth the legal and evidentiary basis for Mr. Collins'
        coverage as a individual with a disability. The United States
        alleges that Mr. Collins has a disability for purposes of the
        ADA because, at the time he was terminated, Mr. Collins'
        diabetes substantially limited him in the major life activities
        of eating, thinking, and caring for himself.^2^[^26] Contrary to
        Defendant's assertion, the United States does not contend -- and
        has never contended -- that Mr. Collins is substantially limited
        in working or exercising.

        The determination of whether an individual has a "disability" --
        a physical or mental impairment that substantially limits one or
        more of the major life activities -- involves a three step
        process:

        First, we consider whether \[the individual's claimed
        disability\] was a physical **impairment**. Second, we identify
        the life activity upon which the \[individual\] relies . . . and
        determine whether it constitutes a **major life activity** under
        the ADA. Third, tying the two statutory phrases together, we ask
        whether the impairment **substantially limited** the major life
        activity.^2^[^27]

        Major life activities are those basic activities that the
        average person in the general population can perform with little
        or no difficulty, such as caring for oneself, performing manual
        tasks, walking, seeing, hearing, speaking, breathing, learning,
        and working.^2^[^28] A substantial limitation of a major life
        activity is present when "an individual \[has\] an impairment
        that prevents or severely restricts the individual from doing
        activities that are of central importance to most people's daily
        lives."^2^[^29] Whether an impairment is substantially limiting
        includes consideration of "the nature and severity of the
        impairment; the duration or expected duration of the impairment;
        and the permanent or long term impact of, or resulting from, the
        impairment."^3^[^30]

        1\. [Diabetes is a Physical Impairment]{.underline}

        Diabetes is a physical impairment,^3^[^31] and Defendant
        concedes that Mr. Collins had insulin-dependent diabetes
        in 1993. (Def.'s Br. at 2*.)* Diabetes is a serious, lifelong
        condition that has adversely affected and limited Mr. Collins in
        several ways. Mr. Collins must constantly balance his food,
        exercise, and insulin so as to avoid the serious complications
        of high blood sugar and low blood sugar. Mr. Collins is always
        at risk of developing hypoglycemia, even to the point of losing
        consciousness or death. Despite his efforts, Mr. Collins has
        experienced serious, irreversible, long-term complications of
        diabetes, including kidney damage, heart disease, vision loss,
        and high blood pressure. (Ex. 6, Walt Dep. at 39.) His diabetes
        has also caused him to suffer from sexual dysfunction.
        ([Id]{.underline}. at 41-42.) Diabetes is a permanent condition
        and while its symptoms and complications may vary in their
        intensity from day to day, the risks always remain.

        2.  [Ronnie Collins Was Substantially Limited In The Major Life
            Activity of Eating At The Time Of His
            Termination]{.underline}

            Mr. Collins is substantially limited in eating because he
            must exercise constant vigilance with regard to his diet to
            manage his diabetes or he will suffer serious health
            consequences, such as heart disease, kidney failure,
            blindness, neuropathy and foot amputation. (Ex. 7, Vinicor
            Expert Rep. at US00332; See Facts, [Supra]{.underline} at
            4-5.) Like many diabetics who use insulin, Mr. Collins must
            take extreme care with what, when, and how much he eats.
            Food, for him, is like medicine, and if taken in the wrong
            types or quantities, or not taken at all, can make him very
            ill. ([See]{.underline} Facts, [Supra]{.underline} at 4-5.)
            Mr. Collins must be very careful to always have some kind of
            calories on him to alleviate the first symptoms of
            hypoglycemia. ([Id]{.underline}.) When he feels those
            symptoms, he typically eats a peppermint candy immediately,
            and then gets additional food. ([Id]{.underline}.) To Mr.
            Collins, it feels like he has to eat constantly to control
            his diabetes. ([Id]{.underline}.)

            Equally burdensome, Mr. Collins is limited in the quantity
            and choice of what he eats, and he cannot eat many of the
            kinds of foods he ate before he was diagnosed with diabetes.
            ([Id]{.underline}.; Ex. 3, Linda Collins Aff.) He must stay
            away from cakes, other sweets, and starches generally
            because they cause his blood sugar to go too high -- which
            causes frequent urination, irritability, dry mouth, and
            leads to serious long term complications. ([See]{.underline}
            Facts, [Supra]{.underline} at 4-5.) He also cannot eat large
            quantities of food, no matter how tasty, because that will
            cause his blood sugar to go too high, and he must have
            regular and frequent meals. ([Id]{.underline}.) These
            restrictions are constant, daily, and carry severe
            consequences if ignored -- possibly loss of consciousness or
            even death. Mr. Collins must also time his meals carefully
            around his insulin shot. In 1993, he was taking one shot a
            day in the morning, and he had to eat breakfast within 30-60
            minutes of taking his shot, or else he would begin to suffer
            the symptoms of hypoglycemia from the effect of the insulin.
            (Ex. 2, Collin Dep. at 154-155.)

            Eating is a major life activity.^3^[^32] As the 5^th^
            Circuit stated in [Waldrip v. General Electric
            Co.]{.underline}, 325 F.3d 652, 655 (5^th^ Cir. 2003),
            "\[b\]y any measure, eating is of central importance to
            daily life and the life process." Several courts have found
            that individuals who have insulin-dependent diabetes may be
            substantially limited in eating.^3^[^33]

            3\. [Ronnie Collins Was Substantially Limited In Thinking
            And Caring For]{.underline}

            [Himself -- Both Of Which Are Major Life Activities -- At
            The Time Of]{.underline}

            [His Termination]{.underline}

            As Defendant acknowledges, on the morning of August 31,
            1993, Mr. Collins was experiencing severe hypoglycemia.
            (Def.'s Br. at 10.) As a result of his severe hypoglycemia,
            Mr. Collins experienced "cognitive dissonance" and became
            substantially limited in thinking and caring for himself.
            Mr. Collins' severe hypoglycemia was demonstrated by, among
            other things, his symptoms of low blood sugar leading up to
            that morning, his disorientation, his unusual behavior, his
            lack of memory of many of the events of that morning, and
            his blood sugar measurement of 39 later that day. (Ex. 7,
            Vinicor Expert Rep. US00334-US00335.) Dr. Vinicor can find
            no explanation for these factors other than that Mr. Collins
            was experiencing severe hypoglycemia.^3^[^34]
            ([Id]{.underline}.)

            On the morning that MDPS terminated him, Mr. Collins was
            unable to comprehend and follow the orders being given him.
            When he was told to go to P.T. -- many times, and by three
            officers -- he just sat on his bunk. ([See]{.underline}
            Facts, [Supra]{.underline} at 13-14.) Even though he may
            have verbally responded to their orders (with a "passing"
            verbal response, as one with Alzheimers disease may do), he
            was unable to understand those orders.^3^[^35]
            ([See]{.underline} Facts, [Supra]{.underline} at 16.)

            A number of courts have acknowledged that an individual
            experiencing a severe hypoglycemic episode is substantially
            limited in a major life activity because they were unable to
            think, care for themselves, see, hear, or speak during these
            episodes.^3^[^36] Mr. Collins was substantially limited when
            he was terminated because, at that time, he was *unable* to
            think and understand or to respond cognitively. Thus, his
            hypoglycemia "severely restrict\[ed him\] from doing
            activities that are of central importance to most people's
            daily lives."^3^[^37] Because of his diabetes, Mr. Collins
            is always and permanently at risk of experiencing
            hypoglycemia that may substantially limit his ability to
            think and care for himself. While Mr. Collins' mitigating
            measures -- food, insulin, and exercise -- allow him to
            avoid the danger of severe hypoglycemia most of the time,
            the denial of a mitigating measure such as necessary food
            will always cause him to become substantially limited in
            thinking and caring for himself.

            While the Fifth Circuit has not yet reached the question of
            whether thinking is a major life activity, the four Courts
            of Appeals that have addressed this issue have held or
            assumed that it is.^3^[^38] Caring for one's self has also
            been widely recognized as a major life activity within the
            meaning of the ADA.^3^[^39] To determine whether Mr. Collins
            was substantially limited in thinking and caring for himself
            in 1993, his condition must be evaluated at the time of his
            termination.^4^[^40]

            In the final analysis, the evidence of Mr. Collins' food
            restrictions, and limitations in thinking and caring for
            himself when hypoglycemic, are sufficient for a jury to find
            that with respect to the major life activities of eating,
            thinking, and self care, Mr. Collins is "significantly
            restricted\...as compared to..the average person in the
            general population." [See]{.underline} 29 C.F.R.
            §1630.2(j)(1)(ii). At the time MDPS terminated him from the
            Academy, Mr. Collins had a "disability" within the meaning
            of the ADA, because he was substantially limited in thinking
            and caring for himself. Were it not for MDPS' restrictions
            on food and denials of Mr. Collins' requests for additional
            food while at the Academy, he would not have become severely
            hypoglycemic. MDPS may not deny Mr. Collins the reasonable
            accommodation that he needs to control his diabetes and then
            escape liability by claiming that Mr. Collins is not
            entitled to the protections of the ADA because he is not an
            individual with a disability.^4^[^41]

            For all the foregoing reasons, the United States
            respectfully requests that Defendant's Motion for Summary
            Judgment be denied.

            Respectfully submitted,

            R. Alexander Acosta

            Assistant Attorney General

            Civil Rights Division

            BY:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
            Date:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

            John L. Wodatch, Chief

            Philip L. Breen, Special Legal Counsel

            L. Irene Bowen, Deputy Chief

            Alyse S. Bass

            Amanda Maisels

            Attorneys

            Disability Rights Section

            Civil Rights Division

            U.S. Department of Justice

            950 Pennsylvania Avenue, N.W.

            Washington, DC 20530

            \(202\) 616-9511, (202) 305-8454 (phone)

            202-307-1197 (fax)

            Cynthia L. Eldridge, AUSA

            MSB #9634

            Office of the U.S. Attorney

            188 East Capitol Street, Suite 500

            Jackson, Mississippi 39201

[^1]: 1 ^1^42 U.S.C. § 12102(2); [See also]{.underline} [Sutton v.
    United Airlines]{.underline}, 527 U.S. 471 (1999) (plaintiff's
    impairment must be evaluated in light of her mitigating measures).

[^2]: 2 ^2^ [Rizzo v. Children's World Learning Centers]{.underline},
    213 F.3d 209, 215-216 (5^th^ Cir. 2000); [Frazier v.
    Simmons]{.underline}, 254 F.3d 1247, 1256 (10th Cir. 2001).

[^3]: 3 ^3^Dr. Frank Vinicor, is the Director of the Division of
    Diabetes Translation, National Center for Chronic Disease Prevention
    and Health Promotion, Centers for Disease Control.

[^4]: 4 ^4^ Although Mr. Collins, who received his diabetes care from a
    general internist in Cleveland, Mississippi, did not have access to
    all of the latest research and medical trials that were being
    conducted at academic medical centers in larger cities, he received
    acceptable diabetes care. Diabetes treatment changed quite
    dramatically after the publication of results from the Diabetes
    Control and Complications Trial (DCCT) on September 30, 1993.
    Diabetes Control and Complications Trial Research Group, *The Effect
    of Intensive Treatment of Diabetes on the Development and
    Progression of Long-term Complications in Insulin-Dependent Diabetes
    Mellitus*, 329 New Eng. J. Med. 977 (1993), attached at Ex. 5. This
    10-year study presented the first consistent and convincing evidence
    that intensive diabetes therapy could mitigate the long-term serious
    complications of diabetes. Following the publication of this study,
    diabetes doctors, for the first time, had clear evidence of the
    importance of instructing their patients to maintain tight control
    of their blood sugar through daily blood sugar testing, multiple
    shots of insulin per day, and regular contact with their physician
    and other experts such as nurses, dietitians and diabetes educators.
    (Ex. 5, DCCT Study; Ex. 4, Vinicor Dep. at 19, 62-64.)

[^5]: 5 ^5^ As Dr. Vinicor testified, "brain hypoglycemia, is not an
    all-or-none phenomenon. It doesn't affect every single function of
    brain, nor does it constantly and persistently affect all function
    in the brain. There is with hypoglycemia, and the studies would
    support this, a fluctuation or waxing and waning of blood sugars all
    within the low blood sugar range\.... parts of brain function can be
    not working and other parts working fine\.... you may\... be able to
    drive a car and still be hypoglycemic in terms of your ability to
    think, to react, to understand." (Ex. 4, Vinicor Dep. at 88-89.)

[^6]: 6 ^6^ There is a factual dispute as to whether MDPS was required
    to provide Mr. Collins an impartial hearing before dismissing him,
    and if it was required, why they did not. (Ex. 27, BLEOST at
    US00478; Ex.13, 30(b)(6) Dep. at 46.) The Mississippi Board on Law
    Enforcement Officer Standards and Training ("BLEOST") sets standards
    that govern all law enforcement Academies in the state. (Ex. 27,
    BLEOST at US00382, US00384, US00386; Ex. 13, 30(b)(6) Dep. at
    42-43.) Those standards state that: "prior to dismissal for
    disciplinary reasons, a student should be afforded the opportunity
    to have a hearing before an impartial review board." (Ex. 27, BLEOST
    at US00478 §24.7.2; Ex. 13, 30(b)(6) Dep. at 46; [See
    also]{.underline} Ex. 16, Cadet Manual at 25-28.) Mr. Collins was
    not afforded such a hearing. (Ex. 13, 30(b)(6) Dep. at 47-48.)
    Lacking such a procedure, Mr. Collins appealed his termination to
    the State of Mississippi Employee Appeals Board ("EAB"). He
    ultimately was provided no recourse from that tribunal. Without
    deciding his case on the merits, the Board ruled that as a Cadet,
    Mr. Collins was not an employee of the State and that he was not
    entitled to the Appeals Board process. (Ex. 28, EAB Ruling.)

[^7]: 7 ^7^42 USC §12112(b)(5)(A)**.**

[^8]: 8 ^8^[Taylor v. Principal Financial Group, Inc.]{.underline}, 93
    F.3d 155, 163-165 (5^th^ Cir. 1996); 29 CFR § 1630.2(o)(3) (EEOC
    Title I regulations.)

[^9]: 9 ^9^[US Airways v. Barnett]{.underline}, 535 U.S. 391, 400
    (2002); [Stewart v. Happy Herman\'s Cheshire Bridge,
    Inc.]{.underline}, 117 F.3d 1278, 1285-86 (11th Cir. 1997); [Hankins
    v. The Gap, Inc.]{.underline}, 84 F.3d 797, 800-801 (6th Cir. 1996).

[^10]: 0 ^10^[Principal Financial Group]{.underline}, 93 F.3d at 165;
    [Loulseged v. Akzo Nobel Inc.]{.underline}, 178 F.3d 731, 736 (5^th^
    Cir. 1999).

[^11]: 1 ^11^[US Airways]{.underline}, 535 U.S. at 401-402.

[^12]: 2 ^12^ [See]{.underline}, [EEOC Enforcement Guidance on
    Reasonable Accommodation and Undue Hardship Under the Americans with
    Disabilities Act]{.underline}, Requesting Reasonable Accommodation,
    Question 1 and 3(2002);
    \<[http://www.eeoc.gov/docs/accommodation.html\>](../%3Chttp://www.eeoc.gov/docs/accommodation.html%3E)
    (Reasonable accommodation requests do not need to be in writing, do
    not need to use the words "reasonable accommodations," and can be
    made to any supervisor.); [See also]{.underline} [Taylor v.
    Phoenixville Sch. Dist.]{.underline}, 184 F.3d 296, 313-314 (3d Cir.
    1999); [Smith v. Midland Brake, Inc.]{.underline}, 180 F.3d 1154,
    1172 (10th Cir. 1999) (en banc).

[^13]: 3 ^13^ [See]{.underline} [EEOC Guidance,]{.underline} Question 4;
    [See also]{.underline} [Ralph v. Lucent Technologies,
    Inc.]{.underline}, 135 F.3d 166, 172 (1st Cir. 1998) (The obligation
    to provide a reasonable accommodation is a continuing one.)

[^14]: 4 ^14^[See Phoenixville]{.underline}, 184 F.3d at 317 (the
    employer should "offer and discuss available alternatives when the
    request is too burdensome.")

[^15]: 5 ^15^[Loulseged]{.underline}, 178 F.3d at 737 n.6.

[^16]: 6 ^16^Defendant has not argued, and cannot argue that it would
    have been an *undue hardship* to permit Mr. Collins to get another
    plate of food in the cafeteria, use the vending machine, or eat a
    peppermint without punishment, because none of these requests would
    have caused MDPS difficulty or expense. 42 U.S.C. §12111(10).

[^17]: 7 ^17^ [See]{.underline} [Loulseged]{.underline}, 178 F.3d at 738
    ("A clear declaration by an employer that no reasonable
    accommodation will be forthcoming might indeed be seen as
    terminating the interactive process and removing any duty the
    employee had to speak up").

[^18]: 8 ^18^[See Phoenixville]{.underline}, 184 F.3d at 312, 317-318
    (an employer who acts in bad faith in the interactive process will
    be liable if the jury can reasonably conclude that the employee
    would have been able to perform the job with accommodations).

[^19]: 9 ^19^ Even if Mr. Collins had measured his glucose with urine
    strips while at the Academy, his actions would have been the same --
    he would have requested additional food to raise his glucose level.
    In any event, urine strips are not capable of measuring *low*
    glucose levels, they only measure highs.

[^20]: 0 ^20^ While, unfortunately, like most diabetics, Mr. Collins was
    not able to perfectly manage his diabetes, any problem with Mr.
    Collins' food regimen, as noted by Dr. Walt, was that it caused his
    blood sugar to run too high. (Ex. 6, Walt Dep. at 36-37.)

[^21]: 1 ^21^ See [Robertson v. Neuromedical Ctr.]{.underline}, 161 F.3d
    292 (5^th^ Cir. 1998) (neurologist with ADHD, who had control over
    whether or not to take his medication, admitted he was unable to
    safely care for patients); [Jones v. American Postal Workers
    Union]{.underline}, 192 F.3d 417 (4^th^ Cir. 1999) (employee with
    schizophrenia and post traumatic stress syndrome threatened to kill
    his supervisor); [Hamilton v. Southwestern Bell]{.underline}, 136
    F.3d 1047 (5^th^ Cir. 1998) (employee with post traumatic stress
    disorder violated employer's workplace violence policy in an
    unprovoked outburst at work); [Palmer v. Circuit Court of Cook
    Co.]{.underline}, 117 F.3d 351 (7^th^ Cir. 1997) (employee with
    depression and delusional disorder threatened to kill her
    supervisor).

[^22]: 2 ^22^Although the Supreme Court recently touched on the issue of
    workplace conduct rules in [Raytheon Co., v. Hernandez]{.underline}
    2003 WL 22843597 (U.S. Dec. 2, 2003), that case is not factually or
    legally analogous. In [Raytheon]{.underline}, the employer applied a
    no re-hire policy to an employee who had been lawfully forced to
    resign for violating his employer's drug policy. Further, the
    employee, who use illegal drugs, was not a qualified individual with
    a disability under the ADA. [See]{.underline} 42 U.S.C. § 12114(a).

[^23]: 3 ^23^ Dr. Vinicor's opinion is that: "To my way of thinking, in
    this particular case it was known that Mr. Collins was a law
    officer, certainly, in other capacities; that he certainly made it
    known that he had diabetes and took insulin; and certainly they
    sensed that he was different than when he came into the academy or
    else they wouldn't have discharged him. And I think those things
    together, knowing that he had diabetes, knowing that he took
    insulin, knowing that several times he indicated to the officers
    that he had diabetes and was taking insulin, et cetera, that that
    would have been sufficient to indicate in my judgment, my personal
    clinical judgment, to people to have known that something could be
    going on \... and should have been recognized as the possibility
    that this was hypoglycemia." (Ex. 4, Vinicor Dep. at 39-40.)

[^24]: 4 ^24^ 29 CFR §1630.2(m).

[^25]: 5 ^25^[See, e.g.]{.underline} [Doane v. City of
    Omaha]{.underline}, 115 F.3d 624 (8th Cir. 1997) (Court held that
    plaintiff was qualified for and could perform the essential
    functions of the police officer position because he had the
    necessary educational background, valid motor vehicle license,
    physical fitness, correctable vision, and nine years of successful
    performance as a police officer).

[^26]: 6 ^26^ Contrary to Defendant's assertion (Def.'s Br. in Supp. of
    Summ. J. at 16.), the United States stated, in answering Defendant's
    Interrogatories, that when MDPS terminated Mr. Collins, he was
    substantially limited in several major life activities, including,
    but not limited to thinking and eating.

[^27]: 7 ^27^[Bragdon v. Abbott]{.underline}, 524 U.S. 624, 631 (1998)
    (emphasis added).

[^28]: 8 ^28^29 C.F.R. § 1630.2(i); Appendix to Part 1630-Interpretive
    Guidance on Title I of the ADA, 29 C.F.R. § 1630.2(i); [See
    also]{.underline} [Bragdon v. Abbott]{.underline}, 524 U.S. at 638.
    ("\...major denotes comparative importance and suggests that the
    touchstone for determining an activity's inclusion under the
    statutory rubric is its significance," and further explained that
    the phrase "major life activities" includes those that "are central
    to the life process itself.")

[^29]: 9 ^29^[Toyota v. Williams]{.underline}, 534 U.S. 184, 198,
    196-197 (2002) ("Substantially" in the phrase "substantially limits"
    suggests "considerable" or "to a large degree"\... and "precludes
    impairments that interfere only in a minor way\..."). [See
    also]{.underline} 29 C.F.R. § 1630.2(j)(1).

[^30]: 0 ^30^[See]{.underline} 29 C.F.R. §1630.2(j)(2).

[^31]: 1 ^31^ [See]{.underline} 29 C.F.R. §1630.2(h)(1) (a physical
    impairment is any "physiological disorder or condition . . .
    affecting one or more of the following body systems: neurological,
    musculoskeletal, special sense organs, respiratory . . .
    cardiovascular, . . . digestive, genito-urinary, hemic and
    lymphatic, skin, and endocrine.")

[^32]: 2 ^32^[Waldrip v. General Electric Co.]{.underline}, 325 F.3d
    652, 655 (5^th^ Cir. 2003); [Fraser v. Goodale]{.underline}, 342
    F.3d 1032, 1040 (9^th^ Cir. 2003); [Amir v. St. Louis
    Univ.]{.underline}, 184 F. 3d 1017, 1027 (8^th^ Cir. 1999).

[^33]: 3 ^33^ [See]{.underline} [Fraser v. Goodale]{.underline}, 342
    F.3d 1032, 1041 (9^th^ Cir. 2003) (plaintiff with type 1 diabetes
    may be substantially limited in eating because her "diabetes regimen
    is perpetual, severely restrictive, and highly demanding."); [Lawson
    v. CSX Transportation, Inc.]{.underline}, 245 F.3d 916, 924-926
    (7^th^ Cir. 2001) (applicant with insulin-dependent diabetes may be
    substantially limited in eating because his ability to metabolize
    food is difficult and erratic, he must exercise constant vigilance
    to control his blood sugar, and he must always concern himself with
    the availability of food, the timing of when he eats, and the type
    and quantity of food he eats.); [Erjavac v. Holy Family Health
    Plus]{.underline}, 13 F.Supp.2d 737, 746-747 (N.D. Ill. 1998) (even
    in its treated form, plaintiff's insulin-dependent diabetes may
    substantially limit the major life activities of eating and
    elimination of waste because plaintiff must eat constantly to
    prevent blood sugar fluctuations; must stop all other activities and
    pursue food when her blood sugar drops; must urinate frequently; and
    self-inject insulin several times a day.)

[^34]: 4

    ^34^ The United States does not concede that MDPS's designated
    expert, Dr. Frederick Carlton, who practices emergency medicine, and
    has no specialized training or experience in diabetes, is qualified
    to testify as an expert on all of the issues in this case.

[^35]: 5 ^35^[See, e.g., Nawrot v. CPC Int'l]{.underline}, 277 F.3d 896,
    901 (7^th^ Cir. 2002) (when plaintiff was introduced to a new
    employee, he was suffering from hypoglycemia, and his offensive
    statement, "I would shake your hand but I just went to the bathroom
    and did not wash my hands," was a product of his disorientation from
    the hypoglycemia.)

[^36]: 6 ^36^[See]{.underline} [Nawrot v. CPC Int'l]{.underline}, 277
    F.3d at 905 (finding plaintiff was substantially limited in his
    ability to think and care for himself because the plaintiff, who had
    insulin-dependent diabetes, suffered from hypoglycemic episodes,
    during which "his ability to think coherently is significantly
    impaired, as well as his ability to function\.... \[and\] his
    ability to express coherent thoughts is impaired, causing him to
    make nonsensical statements."); [McCusker v. Lakeview Rehabilitation
    Center]{.underline}, No. Civ. 03-243-JD, 2003 WL 22143245, at
    \*1,\*3 (D. N.H. Sept. 17, 2003) (plaintiff may be substantially
    limited in major life activities during his occasional hypoglycemic
    episodes when he is unable to communicate, concentrate, control his
    movements, or care for himself); [EEOC & Landers v.
    Wal-Mart]{.underline}, 99-CV-453, 2001 WL 1725300, at \*5 (W.D.N.Y.
    Sept. 28, 2001) (plaintiff may have been substantially limited in
    major life activities, such as seeing, hearing, and working, based
    on one episode at work when he passed out due to hypoglycemia.).

[^37]: 7 ^37^ [See]{.underline} [Toyota v. Williams]{.underline}, 534
    U.S. 184, 198 (2002).

[^38]: 8 ^38^[See]{.underline} [Nawrot v. CPC Int'l]{.underline}, 277
    F.3d at 905 (plaintiff, a person with insulin-treated diabetes,
    \"has sufficiently demonstrated that his diabetes substantially
    limits his ability to think and to care for himself, which are both
    major life activities.\"); [EEOC v. Sara Lee Corp.]{.underline}, 237
    F.3d 349, 353 (4th Cir. 2001); [Doyal v. Okla. Heart,
    Inc.]{.underline}, 213 F.3d 492, 496 (10th Cir. 2000); [Taylor v.
    Phoenixville Sch. Dist.]{.underline},184 F.3d 296, 307 (3d
    Cir.1999); [see also]{.underline} [Mulholland v. Pharmacia & Upjohn,
    Inc.]{.underline}, 4:99-CV-98, 2001 WL 311241, at \*4 (W.D. Mich.,
    Feb. 15, 2001), and [EEOC v. Voss Electric Co.,]{.underline} 257 F.
    Supp. 2d. 1354, 1359 (W.D. Okla. 2003).

[^39]: 9 ^39^ [Nawrot v. CPC Int'l]{.underline}, 277 F.3d at 905;
    [Fenney v. Dakota, Minn. & E. R.R. Corp.]{.underline}, 327 F.3d 707,
    714 (8th Cir. 2003); [Peters v. Baldwin Union Free Sch.
    Dist.]{.underline}, 320 F.3d 164, 168 (2d Cir. 2003) (Rehabilitation
    Act); [McCusker v. Lakeview Rehabilitation Center]{.underline}, No.
    Civ. 03-243-JD, 2003 WL 22143245, at \*3 (D. N.H. Sept. 17, 2003).
    [See also]{.underline} regulations to ADA and Rehabilitation Act,
    each listing "caring for one's self" as an example of a major life
    activity, 29 CFR §1630.2(i); 28 CFR §41.31(b)(2); [Bragdon v.
    Abbott]{.underline}, 229 U.S. at 638 (the ADA must be construed to
    be consistent with the Rehabilitation Act regulations).

[^40]: 0 ^40^[Nowak v. St. Rita High School]{.underline}, 142 F.3d 999,
    1003 (7^th^ Cir. 1998) (The determination as to whether an
    individual is a \"qualified individual with a disability\" must be
    made as of the time of the employment decision); [Frazier v.
    Simmons]{.underline}, 254 F.3d 1247, 1256 (10^th^ Cir. 2001) (same);
    [Voss Elec. Co.]{.underline}, 257 F. Supp. 2d at 1358 ("The Court
    must consider the extent of \[plaintiff's\] impairment at the time
    the employment decision was made\...").

[^41]: 1 ^41^[See Denney v. Mosey]{.underline}, No IP 98-852-C, 2000 WL
    680417, at \*10 (S.D. Ind. Mar. 20, 2000) (an employer cannot
    interfere with or prohibit the use on the job of corrective measures
    essential to the employee's health and life and then escape
    liability under the ADA on the theory that the employee does not
    have a disability.)