UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALBERT LASSITER,

Plaintiff-Appellant,

v.

JANET RENO, United States Attorney

General; EDUARDO GONZALEZ,

No. 95-2058

Director, United States Marshal

Service; HELEN F. FAHEY, United

States Attorney; U.S. MARSHAL

SERVICE,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-94-626)

Argued: March 6, 1996

Decided: May 29, 1996

Before RUSSELL, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Bertram Mann, LEVIT & MANN, Richmond, Virginia, for Appellant. Nicholas S. Altimari, Assistant United States

Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Helen F.

Fahey, United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Albert L. Lassiter challenges the district court's entry of summary

judgment on his disability discrimination claim in favor of Janet

Reno, Attorney General and department head of Lassiter's former

employer, the United States Marshal Service (USMS). Lassiter contends that the district court erred in concluding that he had failed to

demonstrate that he was "otherwise qualified" under the Rehabilitation Act of 1973 (the Rehabilitation Act), 29 U.S.C.A. §§ 791(b),

794(a) (West Supp. 1995). Because we agree with the district court

that Lassiter is unable to demonstrate that he can perform, with reasonable accommodation, the essential functions of his former position

as Deputy United States Marshal, see Myers v. Hose, 50 F.3d 278,

282 (4th Cir. 1995), we affirm.

I.

Lassiter served as a deputy marshal in the USMS from 1970 until

his termination in 1992 on the ground that he was medically unfit to

perform his duties. In his final, written performance appraisal, Lassiter's supervisors rated him as either excellent or outstanding in the

discharge of his duties.

The sequence of events that eventually led to Lassiter's termination

began in late 1990. Lassiter began to suspect that his elderly neighbor,

her grandson, and other, unidentified individuals were conspiring to

burglarize his home. Lassiter based his suspicion on a number of

occurrences, including, for example, his observation of various trucks

and cars slowing down as they passed his house and his receipt of

hang-up phone calls that Lassiter traced to relatives of his neighbor

through his caller-identification system. Lassiter contacted several

officers of the Chesterfield County Police Department (CCPD) and

expressed his concerns. In one conversation, a CCPD officer warned

 2
Lassiter that he could not shoot the burglars; Lassiter responded that

if he could not, the CCPD should "[h]ave a homicide unit standing

by." (J.A. at 43.) After an investigation into Lassiter's concerns, the

CCPD concluded that no conspiracy existed.

Lassiter remained convinced that he was the target of a putative

conspiracy. To foil the alleged burglary ring, Lassiter pretended that

he was away for the Christmas holidays. When he returned from

work, Lassiter parked his car away from his home and entered his

house through the side door. To simulate absence, Lassiter did not

turn on any lights, answer the phone, pick up his mail, wash dishes,

cook food in the oven, or flush the toilets. In preparation for the

intruders, Lassiter wore his firearm in its holster, donned a bulletproof vest, placed duct tape on all the numbers on one phone except

nine and one so he could call the police in the dark if required, and

remained in contact with the CCPD on another phone. Lassiter notified the police dispatchers that he would be armed with a doublebarrel shotgun and a .45 caliber automatic pistol, and warned them

that the only way the burglars would remove his United States Marshal's arm band would be if he were dead.

To ensure he would be alert when the burglars made their move,

Lassiter slept by day and remained awake all night. On the afternoon

of December 23, Lassiter refused to answer his door when a CCPD

officer arrived to investigate a neighbor's complaint that Lassiter was

armed and threatening to kill people. Later, in the early morning

hours of December 24, the CCPD responded to another telephone call

from Lassiter. When the officers arrived, they found Lassiter armed

with an automatic weapon, two magazine rounds, a night-vision

scope, and the bullet-proof vest. After observing the unwashed dishes,

the unflushed toilets, and firearms, the officers became concerned that

Lassiter was heavily armed and acting in an increasingly agitated

manner. The officers departed but returned after obtaining a Temporary Detention Order directing that Lassiter be committed to Charter

Westbrook Hospital for psychiatric evaluation. During his approximately three-week commitment, Lassiter continued to believe the

conspiracy existed and "cheeked" 1 some of the medication provided

_________________________________________________________________

1 Lassiter pretended to swallow the medicine given to him, but spit it

out after the hospital personnel left.

 3
to him because he did not trust the hospital personnel assigned to care

for him. Eventually, Lassiter concluded that the doctors, staff, and his

roommate at the hospital, members of the CCPD, and his pharmacist,

as well as his neighbors, were all involved in the conspiracy against

him.

Two weeks after his discharge from Charter Westbrook, the USMS

arranged to have Dr. Thomas Mathews examine Lassiter. Dr.

Mathews diagnosed Lassiter as suffering from delusional (paranoid)

disorder2 and opined that while Lassiter was not precluded from general employment with the USMS, he should be deprived of his

weapon and relieved of any duties that would necessitate his carrying

a weapon. After officials from the USMS explained to Dr. Mathews

that it would be impossible to serve as a deputy marshal without carrying a gun, Dr. Mathews recommended that Lassiter be declared

medically unfit for duty.

After receiving the results of Dr. Mathews's examination, Lassiter

enlisted the services of three other psychiatrists to evaluate his condition. First, Dr. Melvin Stern diagnosed Lassiter as suffering from

paranoid personality disorder,3 but opined that Lassiter was not pres-

_________________________________________________________________

2 The Diagnostic and Statistical Manual of Mental Disorders, third edition, revised (DSM-IIIR), defines delusional (paranoid) disorder as "the

presence of a persistent, nonbizarre delusion that is not due to any other

mental disorder." (J.A. at 197.) The persecutory type of this disorder is

described as follows:

The persecutory delusion may be simple or elaborate, and usually involves a single theme or series of connected themes, such

as being conspired against, cheated, spied upon, followed, poisoned or drugged, maliciously maligned, harassed, or obstructed

in the pursuit of long-term goals. Small slights may be exaggerated and become the focus of a delusional system. In certain

cases the focus of the delusion is some injustice that must be

remedied by legal action . . . , and the affected person often

engages in repeated attempts to obtain satisfaction by appeal to

the courts and other government agencies. People with persecutory delusions are often resentful and angry, and may resort to

violence against those they believe are hurting them.

(J.A. at 198.)

3 The DSM-IIIR states that "[t]he essential feature of this disorder is a

pervasive and unwarranted tendency, beginning by early adulthood and

 4
ently dangerous and "recommend[ed] that he be allowed to return to

work including having the right to bear arms in the same capacity of

Deputy U.S. Marshal that he had prior to his being hospitalized."

(J.A. at 58-59.) Second, Dr. Juliann Hanback also opined that Lassiter

had paranoid personality disorder, but recommended that Lassiter

obtain psychiatric treatment or regular psychiatric assessments before

regaining the right to own and carry firearms. Third, Dr. Paul Travis

recommended that Lassiter be evaluated by a specialist in paranoid

disorders.

After careful consideration of the reports of the examining psychiatrists and review of the events of late 1990, officials at the USMS

decided to relieve Lassiter of his duties as a deputy marshal in May

1992. In an effort to accommodate Lassiter, the USMS attempted to

place Lassiter in an administrative position in which he would not

have to carry a firearm. However, because the search for a vacant

position within Lassiter's commuting area was fruitless, the USMS

terminated Lassiter's employment.

After the USMS terminated Lassiter's employment, Lassiter consulted a fourth psychiatrist, Dr. David Daniel. Based on his examination, Dr. Daniel concluded that "Lassiter suffers from paranoid

personality disorder and has a very low potential for impulsive violence." (J.A. at 72.)

After exhausting his administrative remedies,4 Lassiter commenced

_________________________________________________________________

present in a variety of contexts, to interpret the actions of people as deliberately demeaning or threatening." (J.A. at 202.)

4 Shortly after his termination, Lassiter appealed the USMS's decision

to the Merit Systems Protection Board (MSPB). Following a hearing, an

MSPB administrative law judge (ALJ) held that the USMS did not discriminate against Lassiter in violation of the Rehabilitation Act. In particular, the ALJ accorded more weight to Dr. Mathews's testimony than

that of Lassiter's expert witnesses, who maintained that Lassiter suffered

from a paranoid personality disorder but was not delusional, because Dr.

Mathews's opinion was better supported by the narrative provided by

Lassiter to the experts and because Lassiter's experts had not examined

Lassiter until months after his hospitalization. Additionally, the ALJ held

 5
this action in the United States District Court for the Eastern District

of Virginia against the USMS, the Attorney General, the United

States Attorney for the Eastern District of Virginia, and Eduardo Gonzalez, the Director of the USMS, alleging that his termination violated

the Rehabilitation Act and the Virginia Human Rights Act, Va. Code

Ann. §§ 2.1-714 to -725 (Michie 1995). The district court dismissed

all claims against all parties except for the Rehabilitation Act claim

against the Attorney General. The district court subsequently granted

summary judgment in favor of the Attorney General on the Rehabilitation Act claim, holding that Lassiter had failed to offer evidence

raising a genuine issue of material fact on the issue of Lassiter's ability to perform the essential functions of his position with or without

a reasonable accommodation for his disability.

Lassiter appeals only the district court's entry of summary judgment on his Rehabilitation Act claim, contending that (1) a genuine

issue of material fact existed as to whether Lassiter could perform the

essential functions of a deputy marshal and (2) the USMS had failed

to reasonably accommodate Lassiter's disability. After briefly discussing our standard of review on summary judgment and setting

forth the framework for analyzing claims under the Rehabilitation

Act, we address Lassiter's arguments in turn.

II.

Rule 56(c) of the Federal Rules of Civil Procedure requires the district court to enter summary judgment against a party who, "after adequate time for discovery . . . fails to make a showing sufficient to

establish the existence of an element essential to that party's case, and

on which that party will bear the burden of proof at trial." Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). To prevail on a motion

_________________________________________________________________

that Lassiter had failed to show that a reasonable accommodation for his

disability existed. The MSPB affirmed the ALJ's initial ruling that Lassiter was medically unfit for his position, and the Equal Employment

Opportunity Commission subsequently concurred with the MSPB's findings. Despite these administrative adjudications, Lassiter was entitled to

a trial de novo on his discrimination claim in the district court. See

Chandler v. Roudebush, 425 U.S. 840, 863 (1976).

 6
for summary judgment, the Attorney General must"show that there

is no genuine issue as to any material fact and that[she] is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(c). In evaluating

the evidence, all reasonable inferences must be construed in favor of

Lassiter. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255

(1986). However, "[w]here the record taken as a whole could not lead

a rational trier of fact to find for the non-moving party, there is no

genuine issue for trial." Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).

We review Lassiter's challenge to the district court's entry of summary judgment de novo. Harleysville Mut. Ins. Co. v. Packer, 60 F.3d

1116, 1120 (4th Cir. 1995).

Lassiter claims that he was unlawfully discharged from his position

as a deputy marshal because of his disability in violation of sections

501 and 504 of the Rehabilitation Act. See 29 U.S.C.A. §§ 791(b),

794(a).5 Section 504 provides that "[n]o otherwise qualified individual

with a disability . . . shall, solely by reason of her or his disability,

. . . be subjected to discrimination under any program or activity . . .

conducted by any Executive agency." 29 U.S.C.A.§ 794(a). For Lassiter to establish a violation of section 504, he must prove: "(1) that

he has a disability; (2) that he is otherwise qualified for the employment or benefit in question; and (3) that he was excluded from the

employment or benefit due to discrimination solely on the basis of the

disability." Doe v. University of Md. Medical Sys. Corp., 50 F.3d

1261, 1265 (4th Cir. 1995).

Under the Rehabilitation Act, an individual with a disability is

defined as a person who "(i) has a physical or mental impairment

which substantially limits one or more of such person's major life

activities, (ii) has a record of such impairment, or (iii) is regarded as

having such an impairment." 29 U.S.C.A. § 706(8)(b) (West Supp.

1995). The Attorney General does not dispute that the USMS regards

Lassiter as being disabled, see Forrisi v. Bowen , 794 F.2d 931, 934

(4th Cir. 1986) (recognizing that even though the employee does not

_________________________________________________________________

5 Because Lassiter "has consistently litigated this action as a straightforward anti-discrimination claim cognizable under section 501 or section 504," we shall treat it as such. See Hogarth v. Thornburgh, 833 F.

Supp. 1077, 1083 (S.D.N.Y. 1993).

 7
believe that he is disabled, he is considered to be an individual with

a disability under the Rehabilitation Act if the employer regards the

employee as having a disability), nor does she contend that the USMS

terminated Lassiter for a reason other than his disability. Thus, we

focus our discussion on the second element of the test: Whether Lassiter was otherwise qualified under the Rehabilitation Act.

A disabled person is otherwise qualified for a position if he "can

perform `the essential functions' of the job in question." School Bd.

of Nassau County, Fla. v. Arline, 480 U.S. 273, 287 n.17 (1987). If

the disabled individual is unable to perform the essential functions of

the position, the employee's termination may nevertheless be unlawful if the employer has failed to provide a reasonable accommodation

that "would enable the handicapped person to perform those functions." Id. Keeping this framework in mind, we now turn to Lassiter's

arguments.

A.

Lassiter first contends that he offered sufficient evidence in the district court to raise a genuine issue of material fact as to whether he

is otherwise qualified under the Rehabilitation Act. To be otherwise

qualified, Lassiter must be able to perform the essential functions of

his position without "pos[ing] a significant risk to the health or safety

of others by virtue of [his] disability that cannot be eliminated by reasonable accommodation." Doe, 50 F.3d at 1265. In assessing whether

an employee can perform his duties without a significant risk to the

safety of himself or others, we must consider the nature of the position and the consequences should the employee fail to perform his

duties properly. See id. at 1265-66 (discussing risk posed by HIVpositive surgeon); Myers, 50 F.3d at 282 (analyzing consequences if

diabetic bus driver's blood sugar rose above the proper level);

Hogarth v. Thornburgh, 833 F. Supp. 1077, 1086 (S.D.N.Y. 1993)

(stating the necessity of evaluating "the consequences of a failure to

perform and the likelihood of such a failure"). For a law enforcement

officer, the failure to perform one's duties properly can result in dramatic repercussions, placing others in imminent peril. See Butler v.

Thornburgh, 900 F.2d 871, 876 (5th Cir.), cert. denied, 498 U.S. 998

(1990); Hogarth, 833 F. Supp. at 1087. Indeed, the USMS maintains

strict medical standards for the mental fitness of its deputy marshals,

 8
requiring that they have no "history of a basic personality disorder."

(J.A. at 559.)

The parties do not dispute that carrying a firearm is an essential

function of a deputy marshal, whose duties require confrontation of

potentially hostile situations and evaluation of whether deadly force

is needed.6 Thus, we are faced with the question of whether the evidence Lassiter offered was sufficient to raise a genuine issue as to

whether he would be able to perform his duties, including carrying a

firearm, without posing a significant risk to the safety of himself or

others.

In support of his assertion that a genuine issue of material fact

exists as to whether he poses a significant risk to the safety of others,

Lassiter refers us to the reports of two of his experts, Drs. Stern and

Daniel, who opine, respectively, that Lassiter should be returned to

employment in the same capacity including the right to bear a firearm

and that Lassiter has a low potential for impulsive violence. Additionally, Lassiter contends that the deposition testimony of Dr. Mathews,

who declared Lassiter medically unfit for duty, represents further evidence of a genuine issue of material fact. In his deposition, Dr.

Mathews answered in the negative when asked whether there was "a

reasonable likelihood that . . . Lassiter will become violent, and therefore, should not carry a weapon." (J.A. at 533.)

_________________________________________________________________

6 The Attorney General describes the duties of a deputy marshal in the

following manner:

The duties of the DUSM position require plaintiff to investigate and apprehend several types of federal fugitives, including

escapees, and bond, probation, and parole violators. In addition,

DUSM's are responsible for investigating, seizing, maintaining,

and disposing of drug-related assets seized pursuant to federal

drug and forfeiture laws. Moreover, DUSM's provide security

for judges, courtrooms, witnesses, prisoners, and juries at threatsensitive trials, including espionage, terrorism, and drug cases.

Deputy U.S. Marshals maintain custody of and transport dangerous prisoners. Finally, Deputy U.S. Marshals execute both criminal and civil federal court process.

(Appellee's Br. at 10 n.2.)

 9
We cannot agree with Lassiter's contention. Upon reviewing the

opinions of Drs. Stern and Daniel and the testimony of Dr. Mathews,

it is evident that there is no genuine issue of material fact that Lassiter

cannot perform his duties without posing a significant risk to the

safety of himself or others. The opinions of Drs. Stern and Daniel and

the testimony of Dr. Mathews show only that Lassiter has a low

potential for impulsive violence, not that he does not pose a significant risk to the safety of himself or others.

Although Dr. Stern does opine that the USMS should return Lassiter to his duties, including carrying a firearm, Dr. Stern's report does

not represent probative evidence raising a genuine issue of material

fact because his conclusion is based not on whether Lassiter poses a

significant risk to the safety of himself or others, but rather on Dr.

Stern's belief that Lassiter is not "presently dangerous." (J.A. at 58.)

In his report, Dr. Stern diagnosed Lassiter as suffering from paranoid

personality disorder and warned that persons with this disorder are

overly suspicious, "have an expectation of being exploited or harmed

by others[,]" and "have a tendency to read hidden, demeaning or

threatening meanings into benign remarks or events." (J.A. at 58.)

Stern concluded, however, that Lassiter is not presently dangerous

because persons with paranoid personality disorder are unlikely to

"strik[e] out impulsively" in a violent manner. (J.A. at 58.)

Agreeing that Lassiter suffers from paranoid personality disorder,

Dr. Daniel also opined that Lassiter "has a very low potential for

impulsive violence." (J.A. at 72.) Similarly, however, Dr. Daniel

reported that persons with paranoid personality disorder display a

"pervasive and unwarranted tendency . . . to interpret the actions of

people as deliberately demeaning or threatening." (J.A. at 69 (internal

quotation marks omitted).) Regarding Lassiter's erratic behavior in

December 1990, Dr. Daniel further opined that Lassiter's misinterpretation of the events was not a delusion, but more likely an "overvalued idea" or an "idea[ ] of reference." (J.A. at 70 (internal quotation marks omitted).) Dr. Daniel defines an over-valued idea as an

"unreasonable and sustained belief or idea" and an idea of reference

as an "idea[ ] . . . that events, objects, or other people in the person's

immediate environment have a particular and unusual meaning specifically for him." (J.A. at 69-70 (internal quotation marks omitted).)

 10
Dr. Mathews's admission that Lassiter was not reasonably likely to

become violent similarly does not represent probative evidence of a

genuine issue of material fact, because, again, the inquiry is not

whether Lassiter is reasonably likely to become violent, but whether

Lassiter poses a significant risk to the safety of himself or others.

When asked whether Lassiter "pose[d] a reasonable probability of

substantial harm[,]" a question whose phrasing resembles the issue at

hand, Dr. Mathews responded unequivocally in the affirmative. (J.A.

at 483.)

The opinions of Drs. Stern and Daniel and the testimony of Dr.

Mathews support the conclusion that Lassiter is unlikely to strike out

impulsively with violence; however, they do not contradict the overwhelming evidence in the record that Lassiter, when carrying a firearm in the course of his duties, poses a significant risk to the safety

of himself and others. Given the duties of a deputy marshal, a significant risk to the safety of others can arise not only from an inclination

to strike out in violence, but also from a tendency to misperceive the

true nature of events. Cf. Hogarth, 833 F. Supp. at 1086 (noting danger posed by Federal Bureau of Investigation agent's potential misperception of reality). Placed in unfamiliar circumstances that may or

may not be hostile, the deputy marshal must have the ability to decide

in an instant whether the use of deadly force is warranted. If an innocent person is injured or killed because a deputy marshal "read . . .

threatening meanings into benign remarks or events[,]" (J.A. at 58,)

"it is not difficult to imagine the public outrage, let alone the potential

liability" to which the federal government would be subjected, Myers,

50 F.3d at 282 (internal quotation marks omitted).

After careful consideration of the psychiatrists' evaluations and

Lassiter's own account of the events of December 1990, the USMS

made a reasoned, informed decision to terminate Lassiter. The sole

conclusion the record supports is that public safety was the USMS's

only interest when it arrived at its decision. Under these circumstances, "[w]e are reluctant . . . to substitute our judgment for that of"

the USMS. Doe, 50 F.3d at 1266. Because Lassiter is unable to offer

evidence sufficient to raise a genuine issue of material fact, we hold

that the district court did not err in concluding that Lassiter is unable

to perform the essential functions of his job without posing a significant risk to the health and safety of himself and others.

 11
B.

Next, Lassiter asserts that even if he is unable to perform the essential functions of his position, his termination was unlawful because

the USMS failed to reasonably accommodate his disability. See

Arline, 480 U.S. at 287 n.17. Lassiter contends that the USMS did not

satisfy its duty of reasonable accommodation because: (1) the USMS

did not allow Lassiter to return to work and regain the privilege of

carrying a firearm after submitting to periodic psychiatric evaluations;

and (2) the USMS failed to reassign Lassiter to an administrative

position in which he would not be required to carry a firearm, or, in

the alternative, to place Lassiter on a leave of absence until an administrative position opened in the district.

Lassiter contends that the USMS should have reasonably accommodated his disability by allowing him to return to work and regain

the right to carry a weapon after periodic psychiatric evaluations, as

suggested by Dr. Hanback.7 Lassiter's argument fails because a disabled employee must be able, with reasonable accommodation,

presently to perform the essential functions of his job. See Myers, 50

F.3d at 283. The Rehabilitation Act does not envision requiring "an

employer to wait an indefinite period for an accommodation to

achieve its intended effect." Id. Thus, Lassiter's suggestion is not a

reasonable accommodation under the Rehabilitation Act.

Finally, Lassiter asserts that the duty of reasonable accommodation

required the USMS either to transfer Lassiter to an administrative

position in which he did not have to carry a firearm, or to place Lassiter on a leave of absence until an administrative position became

available. Again, the USMS is not required under the law to go to

these lengths to accommodate Lassiter. As a matter of reasonable

accommodation, "an employer is not required . . . to transfer or reassign an employee who is not otherwise qualified for the position he

_________________________________________________________________

7 Lassiter contends that Dr. Mathews also suggested this option. However, the record reveals that although Dr. Mathews recommended that

Lassiter be allowed to return to work after periodic psychiatric evaluations, Dr. Mathews never intimated that Lassiter should be allowed to

carry a firearm after he returned.

 12
then holds." 8 Guillot v. Garrett, 970 F.2d 1320, 1327 (4th Cir. 1992);

see also Carter v. Tisch, 822 F.2d 465, 468 (4th Cir. 1987) ("None

of the courts which have considered the EEOC regulations defining

reasonable accommodation have concluded that an alternative assignment is a required accommodation."). Therefore, we conclude that the

district court properly entered summary judgment in favor of the

Attorney General on the issue of whether a reasonable accommodation existed that would allow Lassiter to perform the essential functions of his job.

III.

For the foregoing reasons, we affirm the decision of the district

court granting summary judgment in favor of the Attorney General.

AFFIRMED

_________________________________________________________________

8 Effective October 1, 1992, federal agencies are required to reassign

disabled employees to suitable, funded, vacant positions located in the

same commuting area provided the reassignment does not impose undue

hardship on the operation of the program. See 29 C.F.R. § 1614.203(g)

(1995). Because the USMS terminated Lassiter in May 1992,

§ 1614.203(g) does not apply to this controversy; however, even if it did,

the record reflects that no vacant positions that qualified under the regulation existed within Lassiter's commuting area.

 13