1This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 12/31/96

TENTH CIRCUIT

RONALD W. DECKERT,

Plaintiff-Appellant,

v.

THE CITY OF ULYSSES, KANSAS; and

LONNIE LEE,

Defendant-Appellee.

No. 95-3328

(D.C. No. 93-1295-PFK)

(District of Kansas)

ORDER AND JUDGMENT1

Before PORFILIO, BARRETT, and EBEL, Circuit Judges.

Plaintiff Ronald Deckert appeals the district court’s award of summary judgment

in favor of defendant, City of Ulysses, Kansas, on his Americans with Disabilities Act

(ADA) claim and § 1983 claim. We affirm. 
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Mr. Deckert is an insulin-dependent diabetic who served as a police officer for the

City of Ulysses from 1976 until January 8, 1993. His employment problems began on

September 5, 1992, when he left his patrol car unlocked, unattended, and running while

responding to a disturbance call on a loud party. During that time, someone took Mr.

Deckert’s patrol car and parked it a block away. Also on September 5, Mr. Deckert failed

to write a required report on a domestic violence call, failed to provide backup for a

building search by two other officers, and failed to lock his patrol car at the end of his

shift. On the basis of these deficiencies and his inadequate investigation of a tire theft

two months earlier, Chief of Police Lonnie Lee suspended Mr. Deckert for five days

without pay, demoted him from sergeant, and required him to undergo a medical exam to

determine if his suddenly poor duty performance was caused by diabetes. As of

September 10, Mr. Deckert was suspended with pay until the exam was completed.

On October 5 and 22, 1992, Dr. Michael Jackson examined Mr. Deckert,

concluding that diabetes was not responsible for his performance deficiencies. After

reviewing Dr. Jackson’s report and consulting with counsel, Chief Lee revised Mr.

Deckert’s punishment on November 9, allowing him to wear his sergeant stripes despite

the demotion in pay and responsibility, but requiring him to have Dr. Jackson certify that

he was physically able to perform his job. Mr. Deckert filed a grievance with the City the

following day. The City’s grievance committee concluded that Chief Lee had just cause

to charge Mr. Deckert with poor performance and that he had correctly sought medical
2Under the ADA, an individual is disabled if he or she: (1) has an impairment that

(continued...)

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advice on Mr. Deckert’s condition. Still, the committee limited the discipline imposed on

Mr. Deckert, allowing him to retain both his rank and current pay status. Mr. Deckert

returned to work on November 24.

On December 11, 1992, Mr. Deckert’s car collided with the rear of another vehicle

while he was on patrol. At that time, Mr. Deckert decided not to report the accident

because no physical injuries or property damage resulted. The other driver, however,

complained about the accident to the City. This individual, Jim Walters, gave a written

statement to Chief Lee a few days later, in which he recalled seeing Mr. Deckert turn his

head while approaching him at a red light. On January 3, 1993, Chief Lee confronted Mr.

Deckert about the December 11 car accident and Mr. Walters’ statement, instructing him

to write a report on the incident. Mr. Deckert did so on January 6, stating that his foot

was wet and slipped off the brake pedal. Chief Lee nevertheless concluded that Mr.

Deckert had been driving inattentively on December 11 and asked him to resign. When

Mr. Deckert refused, Chief Lee fired him. Mr. Deckert then requested another grievance

hearing, which upheld the termination. 

In his first claim on appeal, Mr. Deckert argues that the district court erred in

holding he was not disabled within the meaning of the ADA. Mr. Deckert contends this

holding is erroneous because the EEOC’s interpretive guidelines treat insulin-dependent

diabetes as a disability per se and because the City regarded him as being disabled.2
2

(...continued)

“substantially limits” one or more major life activities; (2) has a record of such an

impairment; or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(2).

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Having established that he is entitled to ADA protection, Mr. Deckert also argues the

district court erroneously awarded summary judgment on the merits of his ADA claim. In

support of this contention, Mr. Deckert alleges the City discriminated against him because

he is a diabetic in numerous ways, culminating in its decision to fire him. 

The district court considering Mr. Deckert’s ADA claim first held he was not

disabled under that statute because diabetes did not “substantially limit” a major life

activity as required by 42 U.S.C. § 12102(2). The court also held summary judgment was

proper on the merits of Mr. Deckert’s ADA claim because he failed to present any

evidence that the City discriminated against him on the basis of his diabetes. We review

the district court’s award of summary judgment de novo. Cone v. Longmont United

Hosp. Ass’n, 14 F.3d 526, 527 (10th Cir. 1994). Under de novo review, we must affirm

the district court’s award of summary judgment if, viewing the record in the light most

favorable to the non-moving party, no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Wolf v. Prudential Ins. Co., 50

F.3d 793, 796 (10th Cir. 1995). If the non-moving party’s allegations are supported by

evidence that is “merely colorable” or “not significantly probative,” summary judgment is

proper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). 
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Applying de novo review, we affirm the district court’s award of summary

judgment on Mr. Deckert’s ADA claim. Assuming, without deciding, Mr. Deckert is a

“qualified individual with a disability” under § 12102(2) of the ADA, he nevertheless

failed to produce any probative evidence that the City fired him or otherwise

discriminated against him because of his diabetes, rather than his poor job performance. 

Although the City did require Mr. Deckert to undergo a medical exam because he has

diabetes, it did not violate the ADA by doing so. Section 12112(d)(4)(A) allows an

employer to require a medical exam when it is job-related and consistent with business

necessity. Id. As interpreted by the EEOC, this section authorizes such an exam “[w]hen

an employee is having difficulty performing his or her job effectively.” Technical

Assistance Manual to 29 C.F.R. § 1630.14(c). Given Mr. Deckert’s poor performance on

September 5, 1992, we believe the City’s actions in this instance are consistent with both

the ADA and sound management principles. Thus, the district court’s award of summary

judgment on this claim was proper.

In his second claim on appeal, Mr. Deckert disputes the district court’s award of

summary judgment on his § 1983 claim. First, Mr. Deckert argues the district court

erroneously failed to recognize his property right in continued employment with the City. 

Mr. Deckert contends that under certain City ordinances, he was entitled to continued

employment as a City police officer until removed by the city council for cause. Next,

Mr. Deckert argues the City denied him due process by discharging him without cause
3On appeal, Mr. Deckert also contends that the City denied him due process by

discharging him without a majority vote of the city council. Although we do not rule on

this issue because it was not argued as a due process violation in the district court, we

note that the Due Process Clause does not mandate the use of any particular procedure,

regardless of state law. Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994);

Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111, 1117 (10th

Cir. 1991). 

4The parties spend a great deal of time arguing over which employment manual,

the 1985 or 1992 version, should apply to Mr. Deckert’s discharge. We decline to decide

this issue, given our view that Mr. Deckert’s conduct constituted cause under either

version.

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and providing a constitutionally deficient post-termination grievance hearing.3 Mr.

Deckert contends the hearing did not constitute due process because he was not allowed

to cross-examine witnesses or have his attorney present, and because the grievance

committee failed to objectively consider his claim.

The district court considering Mr. Deckert’s § 1983 claim denied he had a property

interest in continued employment as a police officer but held that in any event, the City

properly discharged Mr. Deckert for cause and afforded him adequate pre- and posttermination procedural due process. Again, we review the district court’s award of

summary judgment de novo. Cone, 14 F.3d at 527.

Applying de novo review, we affirm the district court’s award of summary

judgment on Mr. Deckert’s § 1983 claim. Assuming, without deciding, Mr. Deckert had

a property right in his position with the City, we hold his conduct on September 5 and

December 11, 1992, provided ample basis for the City to discharge him for cause.4 We

also conclude Mr. Deckert’s procedural due process claim is without merit. In his
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deposition testimony, Mr. Deckert’s attorney admitted making a “joint decision” with his

client to not accompany him to the post-termination grievance hearing. That being the

case, Mr. Deckert cannot now complain about his attorney’s absence there. Similarly,

Mr. Deckert is unpersuasive in arguing his post-termination grievance hearing was

constitutionally deficient because he was not allowed to cross-examine witnesses. The

right of cross-examination is not “universally applicable to all hearings,” Wolff v.

McDonnell, 418 U.S. 539, 567 (1974), but “depends on the significance and nature of the

factual disputes at issue.” West v. Grand County, 967 F.2d 362, 369 (10th Cir. 1992). 

Because the essential facts surrounding Mr. Deckert’s discharge were not in dispute, we

believe the City did not deny him due process by refusing to allow him to cross-examine

witnesses. 

Finally, we see no basis for concluding, as argued by Mr. Deckert, that the City’s

grievance committee failed to objectively consider his claim. Administrative tribunals are

presumed to act with honesty and integrity, unless some “substantial countervailing

reason” can be shown to conclude otherwise. Hicks v. City of Watonga, Okla., 942 F.2d

737, 746 (10th Cir. 1991). Mr. Deckert made no such showing in this case. We therefore

conclude the district court’s award of summary judgment on Mr. Deckert’s § 1983 claim

was proper and AFFIRM both holdings. 

ENTERED FOR THE COURT
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John C. Porfilio

Circuit Judge