PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

FLOYD WILKERSON, Plaintiff-Appellant, v. No. 09-8027 ERIC K. SHINSEKI, 1 Secretary, United States Department of Veterans Affairs,
De fendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. No. 2:08-CV-00115-CAB)

Bruce T. Moats, Law Office of Bruce T. Moats, Cheyenne, Wyoming, for Appellant. Joseph H. Azbell, Assistant United States A ttorney (Kelly H. Rankin, United States Attorney, and Carol A. Statkus , Assistant United States Atto rney, with him on the brief), Cheyenne, Wyoming, for Appellee.

Before TACHA, HENRY, and HARTZ , Circuit Judges.

HENRY , Circuit Judge.

1 Pursuant to Fed. R. App. P. 43(c), we have substitute d Eric K. Shinseki as the Defendant-Appellee in this action. FILED United States Court of Appeals Tenth Circuit 

### June 2, 2010
Elisabeth A. Shumaker Clerk of Court2 Floyd Wilkerson worked on a temporary basis at the Cheyenne Veteran Affairs Medical Center as a boiler plant operator. Fo llowing a failed physical examination, the human resources manager notified him that he was reassigned to a lower paid position. Mr. Wilkerson brought suit against the Secret ary of the U.S. Department of Veterans Affairs (the “VA”), claiming that this rea ssignment discriminated against him based on his obesity and diabetes, in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. , and that age discrimination played a role in his reassignment in violation of the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. §§ 626 and 633a(a). Mr. Wilkerson later tried to amend his complain t to allege that his health records were illegally accessed in violation of the Privacy Act, 5 U.S.C. § 552a. The district court granted summary judgment for the VA on all counts and denied Mr. Wilkerson’s motion for leave to amend the complaint to allege the Privacy Act claim. Because we find that Mr. Wilkerson was not otherwise qualified to hold the position as required by the Reha bilitation Act, we affirm the grant of summary judgment as to this claim. We also affirm the distri ct court’s grant of summary judgment as to his age discrimination claim beca use the VA had a non-discrimi natory reason for removing Mr. Wilkerson that was not pretextual. Fi nally, because Mr. Wilk erson has not alleged that the accessing of the records was intentio nal misconduct, as required by the Privacy Act, we affirm the district court’s de nial of leave to amend the complaint.3 I. BACKGROUND Mr. Wilkerson is employed by the Departme nt of Veterans Affairs in Cheyenne, Wyoming. In February 2003, he began work at the VA as a boiler plant operator under a temporary appointment. When that appointment ended in July 2003, the VA hired Mr. Wilkerson as a full-time permanent employee in housekeeping. In February 2005, Mr. Wilkerson was temporarily reassigned once ag ain to work as a boiler plant operator due to a shortage of employees. VA directives require that all boiler plan t operators complete an annual fitness exam. In early 2007 , because of an apparent overs ight, the VA discovered that Mr. Wilkerson had not completed an annual fitness exam up to this point. Nurse Practitioner Ann Enlow conducted Mr. Wilkerson’s physical examination on February 1, 2007. The exam results noted that Mr. Wilkerson was obese (at 6’3”, Mr. Wilkerson weighed 338 pounds) and had diabetes. Ms. Enlow forwar ded her report to Dr. James Johnson, an employee health physician at the VA. Afte r reviewing Ms. Enlow’s report, Dr. Johnson accessed Mr. Wilkerson’s electronic patient re cords (Mr. Wilkerson had sought medical treatment at the VA for numerous years). Fr om these records and Ms. Enlow’s report, Dr. Johnson concluded that Mr. Wilkerso n’s diabetes was largely uncontrolled and uncontrollable. Dr. Johnson spoke to the boiler room supe rvisors about the physical requirements of the job, as well as with members of the engineering department and human resources.4 Ultimately, Dr. Johnson concluded that Mr. Wilkerson was unable to meet the minimum requirements of the boiler plant operator position. The VA Center for Engineer ing & Occupational Safety and Health (CEOSH) has established guidelines for work as a boiler plan t operator at a VA facility. The guidelines state that “Applicants for all boiler plant op erators and heating and boiler plant equipment mechanic positions must demonstrate to the Occupational Health Provider’s satisfaction that they are capable of arduous physical exertion.” Aple’s App. at 00092. Such employees, the guidelines report: frequently work in confined areas in and around bo ilers and support equipment. The work re quires moderate to strenuous effort and long periods of walking, standing, climbi ng, bending and crouching. Workers frequently lift and carry boiler parts a nd chemical supplies weighing up to 40 pounds unassisted and oc casionally items weighing over 40 pounds with assistance of other workers or weight-handling equipment. Id. The guidelines then state that any “structural or functiona l limitation or defect that interferes materially with a high degree of ph ysical activity will dis qualify the individual” and sets a number of criteria that are “exclu sionary,” among these are “[u]ncontrolled or poorly controlled insulin-dependent diabetes.” Id. at 00092, 00093. Finally, “boiler plant operators must have annual ph ysical examinations to ensure physical fitness to perform assigned duties.” Id. Accordingly, Dr. Johnson called Sand ra Willoughby, the Human Resources Officer for the VA at the time, and told her that Mr. Wilk erson had failed his physical, noting Mr. Wilkerson’s uncontrolled diabetes and his concern about Mr. Wilkerson’s ability to perform challe nging physical tasks. Ms. Willo ughby told Mr. Wilkerson that he5 failed his physical, and that he no longer me t the environmental requirements for a boiler plant operator because he we ighed over 300 pounds and th e ladders in the boiler plant only supported up to 300 pounds. After he received the letter, M r. Wilkerson requested that special accommodations be made for his weight; specifically he asked that the VA purchase ladders that would support his weig ht. According to the deposition testimony of Ms. Willoughby, the VA consider ed this option but dismissed it because the other issues raised by the physical would still preclude his safe employment. Id. at 00066 (Deposition of Ms. Willoughby). Ms. W illoughby informed Mr. W ilkerson that the VA was reassigning him back to housekeep ing, effective the next day. Id. at 00032. After Mr. Wilkerson’s reassignment to housekeeping, his pay grade fell eight levels, from WG-10 to WG-2, and his hourl y pay decreased from $21.98 an hour to $12.51 an hour. Mr. Wilkerson brought suit against the Depa rtment of Veterans Affairs Secretary, James B. Peake, alleging that the VA had disc riminated against him in violation of the Rehabilitation Act, 29 U.S.C. §§ 791, 794, that the VA failed to accommodate his disability, 42 U.S.C. § 12112 et seq. , and that he was unlawfu lly discriminated against based on his age in violation of the ADEA, 29 U.S.C. § 626 and 633a(a). While the VA’s summary judgment motions were pending, Mr. Wilkerson asked for leave to amend his complaint to include a violation of the Priv acy Act, 5 U.S.C. § 552a, alleging that Dr. Johnson wrongfully accessed Mr. Wilker son’s private medical records.6 The district court granted summary ju dgment for the VA as to all of Mr. Wilkerson’s claims. The district court also denied Mr. Wilkerson’s motion for leave to file his amended complaint, ruling that any ame ndment would be futile. Mr. Wilkerson now appeals.
II. ANALYSIS
A. Rehabilitation Act claim Mr. Wilkerson alleges that he was reassigne d based on his diabetes and obesity, in violation of the Rehabi litation Act. We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court. Somaza v. Univ. of Denver , 513 F.3d 1206, 1211 (10th Cir. 2008). “Summary judgment is appropriate ‘if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). “When applying this standard, we examine the factua l record in the light most favorable to the party opposing summary judgment.” Belhomme v. Widnall , 127 F.3d 1214, 1216 (10th Cir. 1997). To make out a prima facie case for discrimination in violation of the Rehabilitation Act, Mr. Wilkerson must establish: “(1) that [he] is disabled under the Act; (2) that he would be ‘otherwise qualified’ to participate in the program; (3) that the program receives federal financial assistance (or is a federal agency . . .); and (4) that the program has discriminated against the plaintiff.” McGeshick v. Principi , 357 F.3d 1146,7 1150 (10th Cir. 2004). We apply the standa rds from the American with Disabilities Act in analyzing a Rehabilitation Act claim. 29 U.S.C. § 791(g); Jarvis v. Potter , 500 F.3d 1113, 1121 (10th Cir. 2007) (“ We . . . look to the ADA for guidance in resolving Rehabilitation Act claims.”).
1. Is Mr. Wilkerson disabled under the Act?
The first factor under the Rehabilitation Ac t is that the plaintiff must have a disability. The Rehabilitation Act defines th e term “disability” to mean any of the following: (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. 42 U.S.C. § 12102(2); see also EEOC Interpretive Guid elines for the Rehabilitation Act, 29 C.F.R. § 1614.203(b). To be substantially limited in a major life activity, “an individual must have an impairment that prev ents or severely restricts the individual from doing activities that are of central importa nce to most people’s daily lives.” Toyota Motor Mfg., Ky., Inc. v. Williams , 534 U.S. 184, 198 (2002). The impairment’s impact must “be permanent or long term.” Id. In analyzing whether so mething is a disability the court looks to whether it is a “physiological disorder or condition affecting one or more body systems, or any mental or psychological disorder.” Enwonwu v. Fulton-Dekalb Hosp. Auth. , 286 F. App’x 586, 603 (11th Cir. 20 08) (citing 29 C.F.R. § 1630.2(h)(1), (2)). A medical diagnosis is insufficient, rather, “the ADA requires plaintiffs to offer8 evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial.” Id. Here there are two potentially qualifying di sabilities: obesity and diabetes. The question of whether the defendant is disabled was not decided by the district court. The district court stated that: “For the so le purpose of determining whether summary judgment is appropriate in this case, this C ourt will . . . assume that Plaintiff has met his burden in proving that he is a disabled person.” Aplt’s App. at 8. On appeal, neither side has fully briefed this questi on nor is there a record on which to base a decision on whether Mr. Wilkerson is disabled. Furthe r, we find other aspects of the analysis dispositive. Thus, like the district court, we will assume that Mr. Wilkerson has met this prong of the analysis.
2. Is Mr. Wilkerson otherwise qualified?
The Rehabilitation Act and th e ADA provide relief only to disabled persons who are “otherwise qualified” to perform the functi ons of the job. 29 U.S.C. § 794(a). The Equal Employment Opportunity Commission (EEO C) is authorized by 42 U.S.C. § 12116 to promulgate regulations to implement the provisions of the ADA. See 29 C.F.R. § 1630.1–.16. We give these regulati ons “a great deal of deference.” Smith v. Midland Brake, Inc. , 180 F.3d 1154, 1165 n.5 (10th Cir. 1999) (citation omitted); see Sutton v. United Air Lines, Inc. , 130 F.3d 893, 899 n. 3 (10th Cir. 1997). Under these regulations, employers may set skill, experience, educ ation and other job related requirements, including physical qualifications for the employment position. Tate v. Farmland Indus.9 Inc. , 268 F.3d 989, 993 (10th Cir. 2001); Southeastern Cmty. Coll. v. Davis , 442 U.S. 397, 406 (1979) (“An otherwise qualified pers on is one who is able to meet all of the program’s requirements in spite of his hand icap.”). An employer, however, may not: “us[e] qualification standards, employment test s or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-re lated for the position in ques tion and is consistent with business necessity.” 42 U.S.C. § 12112(b)(6); see also E.E.O.C. v. Exxon Corp. , 203 F.3d 871, 872 (5th Cir. 2000) (“The ADA prohibits an employe r from using qualification standards that screen out a disabled indivi dual or class.” (citing 42 U.S.C. § 12112(b)(6) (1999)). Additionally, any job requireme nt must be uniformly enforced. Tate , 268 F.3d at 993. Assuming these requirements are met, we defer to employment guidelines as “constituting a body of experien ce and informed judgment.” Id. at 994 (quoting United States v. Mead Corp ., 533 U.S. 218 (2001) (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 139–40 (1944))). 2
The district court found that Mr. W ilkerson was not otherwise qualified for employment as a boiler room operator: “Altho ugh the Court assumes th at the Plaintiff is disabled, the Court finds that summary judgme nt is appropriate in this case because

2 In addition, we may consider whether the employee would represent a “direct threat” to himself or others if the employment continue d. 42 U.S.C. § 12133(b). Because we hold that he is not otherwise qualified, we need not reach this question.10 Plaintiff was not ‘otherwise qualified’ fo r the position of boiler plant operator. . . . Plaintiff was not discriminated against because of his weight. He simply failed to meet the minimum physical requirements of the pos ition. Because he could not meet these requirements, Plaintiff was not ‘otherwise qua lified’ to be a boiler plant operator at the VA.” Aplt’s App. at 13 (citations omitted). We agree. CEOSH’s guidelines for who could work as a boiler plant operator set a number of criteria that are “exclusionary,” and among th ese are “[u]ncontrolled or poorly controlled insulin-dependent diabetes.” Aple’s App. at 00093. The job requires an operator who might be able at all times to respond to an emergency with some degree of physical agility. Id. at 00092. Moreover, the job requires a fair amount of heavy lifting, bending, agility in movement and so forth. Id. at 00092, 00094 (“Boiler Plant Operator Physical Requirements”). Thus, the question become s whether these requirements are (1) jobrelated, (2) uniformly enforced, and (3 ) consistent with business necessity, Tate , 268 F.3d at 993; if so, the employer has the right to establish what is required to satisfactorily perform the job. All three elements for a valid physical fitness requirement are satisfied here. First, the guidelines are undisputedly job-related: th ey describe the duties of the job and then establish categories of individuals who are ex cluded based on this. For example, in the case of a shutdown or an emergency, an operat or needs to be able to react swiftly to any emergency, such as an increase in pressure. Aple’s App. at 00041 (Deposition of Elvin Wrede) (describing the process in case a shutdown is needed). Further the daily11 responsibilities require that an operator “be ab le to (1) utilize pipe wrenches of varying sizes for removal or tightening of pipe f ittings; (2) go up and down ladders to perform any required maintenance such as re-packi ng or tightening the packing on the valves, change relief valves, replace gaskets and tight en bolts on steam line fl anges; and (3) react instantly to any dangerous situ ations that might occur.” Id. at 00028 (Declaration of Elvin Wrede). Next, the VA uniformly enfo rced the boiler room operat or guidelines: “The VA requires that all boiler room operators unde rgo an annual physical examination” and those who fail are subject to removal. Ap le’s App. at 00031 (Declaration of Sandra Willoughby), 00029 (Declaration of Elvin Wr ede), 00037 (Depositi on of Elvin Wrede); see also id. at 00040 (describing another employee who failed to meet the physical requirements and who was removed from boile r room duties). Indeed, Mr. Wilkerson makes no real argument that the VA treated others in his situation differently. Finally, the guidelines are a business neces sity. The requirements are minimal physical standards that a boiler room operato r must meet. Mr. Wilkerson’s supervisors testified that his responsib ilities included being able “to re spond to warning bells and gauges, and that he ‘needed to be able to climb ladders and go up and down stairs quickly.’” Aplt’s App. at 76. Although Mr. Wilkerson testified that 95% of his work was “[l]ight duty,” and he was only occasiona lly required to climb on ladders, in times of crisis, he might need to act quickly and move with dispatch. Id. at 116–17. The VA was within its power wh en it passed these guidelines and it is understandable for12 administrative ease and to ensure the uniformity of standards that it would desire to have guidelines that establish a lim ited class of individuals who do not qualify to work in boiler rooms at their facilities. We acknowledge that Mr. Wilk erson worked for two year s at this position without incident. Of course, Mr. Wilkerson’s weight and health status durin g all of this time is unknown; we only know that information as of February 2007. But in any event, the requirements are there in case of an ex traordinary but possible emergency, not necessarily to determine the ab ility to perform day-to-day rou tine boiler plant operations. The fact that no such emerge ncy occurred during Mr. Wilker son’s tenure and that he was able to perform his job is fortuitous; but an employer may set standards not only for the mundane work but also for the exceptional. As long as the need to perform in an emergency is a realistic compon ent of the job, the employer s hould be able to “establish reasonable physical qualifications” to ensure that an emergency situation can be dealt with safely and efficiently by the employee, especially in situations like here, where the physical safety of others may be at risk. Southeastern Cmty. Coll. v. Davis , 442 U.S. at
414. The record indicates that M r. Wilkerson would pose a da nger to himself and others should he fall from a ladder. It also warns of potentially disastrous effects if he was unable to shut down a boiler if it malfuncti ons, leading to a possible explosion. For example, Mr. Wilkerson’s supervisor, Elvin Wrede, stated that if one of the boilers was to explode from improper maintenance or operation, “the force would bring down the entire13 building that houses them.” Aple’s App. at 28 (Declaration of Elvi n Wrede). Thus, we agree with the district court that because Mr. Wilkerson failed to meet the VA’s boiler room operator safety standards he was not “otherwise qualified” as required by the Rehabilitation Act. We have established that before an i ndividual can be deemed not “otherwise qualified” the employer must make an effort to accommodate the employee’s disability.
See Woodman v. Runyon , 132 F.3d 1330 (10th Cir. 1997) ; 42 U.S.C. § 12112(b)(5)(A). We have held that federal employers, like th e VA, “must play a considerable role in ensuring that every reasonable effort is made to find suitable jobs for disabled employees.” See Woodman , 132 F.3d at 1334. “There are two components to the reasonable accommodation analysis. First , whether a reasonable accommodation would enable the employee to do the particular job. Additi onal training might be a reasonable accommodation for this purpose. Second , whether the employee co uld be transferred to other work which could be done with or without accommodation.” Gonzagowski v. Widnall , 115 F.3d 744, 747 (10th Cir. 1997) (e mphasis in original). “The federal regulations implementing the ADA envision an interactive process that requires participation by both parties.” Templeton v. Neodata Servs., Inc. , 162 F.3d 617, 619 (10th Cir. 1998) (quotation mark s and citations omitted). We hold that the VA made reasonable a ccommodations under the circumstances. The VA reassigned Mr. Wilkers on to another position, albeit a lower-paid one. As we previously stated, “reassignmen t of an employee to a vacant position in a company is one14 of the range of reasonable accommodations whic h must be considered and, if appropriate, offered if the employee is unable to perform his or her existing job.” Smith , 180 F.3d at 1167. However, when such an offer involves lower pay or benefits, it only satisfies the employer’s duty to accommodate if there are no reasonable accommodations either in the old job or in another vacant lateral position. Id. We hold that under the circumstances there were no reasonable accommodations th at would have allowed Mr. Wilkerson to remain employed in the boiler room and thus the transfer to the lo wer paid position was reasonable. 3 For example, Mr. Wilkerson’s request that the VA purchase a special ladder to accommodate for his weight was a reasonable request and the VA considered it. The VA, however, concluded that such action would not relieve all of the concerns of keeping Mr. Wilkerson in the boiler room. See Aple’s App. at 00066 (Deposition of Sandra Willoughby) (stating that the VA would have been willing to purchase such a ladder but that the VA had too many other concerns that Mr. Wilkerson would not have been qualified even with such a purchase). We have also held that th e Rehabilitation Act “requires an ‘interactive process.’” Woodman , 132 F.3d at 1345 n.16 (reasonable accommodation “is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability” (quoting 29 C.F. R. Pt. 1630, App. § 16 30.9 (1996))). “The obligation to engage in an interactive proce ss is inherent in the statutory obligation to

3 Mr. Wilkerson does not argue th at he should have been tran sferred to a different vacant position in the VA.15 offer a reasonable accommodation to an othe rwise qualified disabled employee. The interactive process is typi cally an essential component of the process by which a reasonable accommodation ca n be determined.” Smith , 180 F.3d at 1172. Here, although there was not a face-to-face meeting between the parties to discuss accommodations, Mr. Wilkerson requested an accommodation that the VA considered and denied. Based on the circumstances in this case, it was reasona ble for the VA to conclude that any further interactive process would be futile and th at no reasonable accommodation was possible that would allow Mr. Wilkerson to work in the boiler room. Thus, we hold that Mr. Wilkerson is not otherwise qualified to serve in the boiler room and there was no reasonable accommo dation that would ha ve allowed him to continue. Accordingly, summary judgment is appropriate as to this claim, and we affirm the district court’s grant of summary judgment for the defendant, the VA.
B. Age Discrimination Employment Act claim Mr. Wilkerson next argues that he was di scriminated against on the basis of his age, in violation of the ADEA, 29 U.S.C. §§ 626 and 633a(a). The di strict court granted summary judgment as to this claim, which we review de novo applying the same legal standard as above. Somaza , 513 F.3d at 1211. “Summary judgment is appropriate ‘if the pleadings, the discovery and disclosure materi als on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).16 To establish a prima facie case for age disc rimination, the plaintiff must prove that he was (1) within the protected class of indi viduals 40 or older, (2) performed satisfactory work; (3) terminated from employment; and (4) repl aced by a younger person. Adamson v. Multi-Cmty. Diversified Servs., Inc. , 514 F.3d 1136, 1146 (1 0th Cir. 2008). Once a prima facie case is established, the burden sh ifts to the VA to articulate a legitimate, nondiscriminatory reason for its actions. Id. at 1145. If the VA does so, the burden returns to Mr. Wilkerson to sh ow either that the VA’s asserted reason was pretextual, or to show that age was nonetheless a determ inative factor in the VA’s employment decision. Id. at 1145. Under the ADEA, a “plaintiff is not required to show that age was the sole motivating factor in the employment decision. Thus a plaintiff need not prove that the reasons offered by the defendant are fa lse if he proves that age was also a reason, and that age was the factor that made a difference.” EEOC v. Prudential Fed. Sav. &
Loan Ass’n , 763 F.2d 1166, 1170 (10th Ci r. 1985) (citations omitted). Mr. Wilkerson presents thr ee main arguments in support of his age discrimination claim. First, he states th e VA denied consideration of hi s applications for two boiler room positions that opened in 2007 and th e VA filled both of these positions with employees younger than him. Second, he points to comments made by Mr. Wrede, his direct supervisor. Another employee reporte d that Mr. Wrede expressed frustration with having to complete a work schedule when so many operators were on extended medical leave, and that maybe he should hire young er workers. Aplt’s App. at 108 (Declaration of Robert Reed). Third, Mr. Wilkerson claims that the VA’s inconsistencies and17 contradictory rationale demonstrate pretext. See Bryant v. Farmers Ins. Exch. , 432 F.3d 1114, 1125 (10th Cir. 2005) (“[W]eaknesse s, implausibilities, inconsistencies, incoherencies or contradictions in the em ployer’s proffered leg itimate reasons for its action that a reasonable factfinder could ratio nally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.”). Mr. Wilkerson has properly alleged all th e elements to establish a prima facie case. He is over the age of forty, he was performing satisfactory work, he was terminated from this position, and, finally, he was replace d by employees who were younger. Aple’s App. at 00022 (alleging that the VA hired two employees to replace him who were ages 47 and 37). The VA, however, has asserted a non-age related justification for its actions—Mr. Wilkerson failed the mandated ph ysical and that it believed that Mr. Wilkerson was unable to perform the essen tial functions required of a boiler room operator. Thus, the burden shifts back to Mr. Wilkerson to allege facts sufficient to show that the VA’s justification was a pretext or that age was a de terminative fact or. Even if we accept everything Mr. Wilkerson asserts as true, he could not prove that “age was a factor that made the difference” or that the VA’s justification was pretextual. Prudential Federal Sav. & Loan Ass’n , 763 F.2d at 1170. The reco rd supports the VA’s stated rationale for transferring Mr. Wilkerson— that he could not meet the physical qualifications. At best, Mr. Wilkerson had a one time, offhand, and fairly ambiguous comment by a supervisor—not directed towa rd Mr. Wilkerson—who did not even make18 the ultimate decision with resp ect to his employment. Give n that there are no disputed facts, and the evidence that exists could not support a claim under the ADEA, we agree with the district court that summary judgmen t in favor of the VA is appropriate on this claim.
C. Privacy Act claim Mr. Wilkerson argues Dr. Johnson’s acce ssing of Mr. Wilkerson’s health records violated his privacy rights. The district c ourt denied Mr. Wilkerson’s motion for leave to amend his complaint to allege a Priv acy Act violation, 5 U.S.C. § 552a. 4 We review the district court’s decision to deny leave to am end a complaint for an abuse of discretion. Hertz v. Luzenac Group , 576 F.3d 1103, 1117 (10th Cir. 2009). A district court should refuse leave to amend “only [upon] a show ing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cu re deficiencies by amendments previously allowed, or futility of amendment.” Duncan v. Manager, Dep’t of Safety, City & County of Denv. , 397 F.3d 1300, 1315 (10th Cir. 2005). The Privacy Act provides that: “No agency shall disclose any record which is contained in a system of records by any m eans of communication to any person, or to another agency, except pursuan t to a written request by, or with the prior written consent

4 Mr. Wilkerson also attempts to allege a violation of the Health Insurance Portability and Accountability Act. Aplt’s Br. at 40 (“The VA is undisputedly governed by the Privacy Act and the so-called ‘Privacy Rule’ of the [HIPAA] .”). Any HIPAA claim fails as HIPAA does not create a private right of ac tion for alleged disclosures of confidential medical information. See Acara v. Banks , 470 F.3d 569, 571 (5th Cir. 2006) (“We hold there is no private cause of action under HIPAA.”).19 of, the individual to whom the record pertains.” 5 U.S.C. § 552a(g)(1)(D). For a plaintiff to succeed on a Privacy Act clai m, he must demonstrate the following four elements: (1) the information is a record w ithin a system of records, (2) the ag ency disclosed the information, (3) the disclosure adversely affected the plain tiff, and (4) the disclosure was willful or intentional. Pierce v. Dep’t of U.S. Air Force , 512 F.3d 184 (5th Cir. 2007). Of course, certain disclosures ar e authorized and do not give ri se to a Privacy Act claim.
See 5 C.F.R. § 297.401 (1996). Mr. Wilkerson’s medical records are undisput edly an applicable record; these files were not part of his employee medical file. Similarly, the parties do not dispute that the VA’s disclosure of the information ad versely affected Mr. Wilkerson. As to element (2), whether there was a disc losure, “[a]lthough ‘d isclosure’ is not defined in the text of the Privacy Act, th e Office of Personnel Management (‘OPM’) has defined ‘disclosure’ under the Privacy Act to mean ‘providing personal review of a record, or a copy ther eof, to someone other than the data subject or the data subject’s authorized representative.’” Pippinger v. Rubin , 129 F.3d 519, 528 (10th Cir. 1997) (quoting 5 C.F.R. § 297.102 (199 7)). We have also interprete d this definition liberally to include not only the physical disclosure of th e records, but also the accessing of private records. Id. When the VA revealed the information to Dr. Jo hnson, the VA disclosed information covered by the Priv acy Act. The VA disclosed th e information in the record to Dr. Johnson, who, under the law, constituted a person other than the data subject or the subject’s authorized representative. The VA does not dispute that the disclosure20 adversely affected Mr. Wilk erson. Thus, the claim tu rns on prong (4) whether the disclosure was willful or intentional. A disclosure is considered “intentional or willful” under the Privacy Act only if the “action [was] so patently eg regious and unlawful that a nyone undertaking the conduct should have known it unlawful, or conduct committed without ground s for believing it to be lawful or action flagrantly disreg arding others’ rights under the Act.” Andrews v. Veterans Admin. , 838 F.2d 418, 425 (10th Cir. 1998) (internal quotation marks and citations omitted). Such conduct must amount to reckless behavior, gross negligence is insufficient. Id. There is no indication that the conduct in this case rises to the level to be considered “willful or intentional,” nor does Mr. Wilkerson cite any. Dr. Johnson testified in his deposition that he thought he could access the record so long as he had a “need to know.” Aplt’s App. at 74; see Hernandez v. Alexander , 671 F.2d 402, 410 (10th Cir. 1982) (concluding that th e “need to know” ex ception authorizes disclosure where records are necessary to make a disciplinary decision). There is no testimony in the records nor is there any other evidence to the contrary. An d given that Mr. Wilkerson’s health records were relevant to whether he could continue working at the VA, Dr. Johnson’s belief was reasonable. Thus, we hold that the district court did not abuse its discretion in denying leave to amend the comp laint to allege a violation of the Privacy Act as any attempt to amend the complaint would be futile, thus summary judgment is appropriate as to this claim.21 III. CONCLUSION Mr. Wilkerson’s frustration over his rea ssignment, after over two years working as the boiler room operator without incident is understandable. However, given these facts, we cannot penalize an employer for following its regulations regarding its reasonable medical health requirements, even if the employ er acts belatedly. Thus, for the foregoing reasons, we affirm the district court’s grant of summary judgment as to Mr. Wilkerson’s Rehabilitation Act and ADEA cl aims and affirm the distri ct court’s denial of Mr. Wilkerson’s motion for leave to amend his comp laint to allege a viol ation of the Privacy
Act.